BWY v Secretary, Department of Education [2020] NSWCATAD 208
Where breaches of three Acts and a person’s rights were neither acknowledged nor dealt with.
Background
BWY worked for the Department of Education (Department) for a long time. She and her colleagues didn’t agree about everything all of the time, but who does? She was made a head teacher, complained about the principal and was herself complained about. She went on leave, was investigated, demoted, and transferred to another school – not necessarily in that order and not necessarily fairly.[1]
With the Department’s permission BWY undertook secondary employment with a company that provided software to schools. After a probation period she was made a permanent employee but left that job and was injured psychologically when her former principal told her employer (who was offering to sell the software to the school) that it wouldn’t be good for BWY to attend the school to demonstrate the software because she had had a negative impact on staff and students at the school.[2]
Applications for conduct reviews
Internal review
BWY applied to the Department for an internal review of the principal’s conduct under section 53 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act). The Department’s internal review findings were: that it did not ‘hold’ the personal information that the principal disclosed as the information was merely an opinion ‘held’ in the principal’s mind, or, alternately, that s 25 of the PPIP Act applied “because the laws of negligence and occupational health and safety” necessarily implied or reasonably contemplated the principal’s non-compliance with s 17 and s 18 of the PPIP Act.[3]
Administrative review
BWY applied to the New South Wales Civil and Administrative Tribunal (Tribunal) for an administrative review of the Department’s conduct under the Administrative Decisions Review Act 1997 (NSW) (ADR Act).
Equality before the law
BWY gave the Tribunal a “considerable body of character references” and evidence from third parties to support that the Department’s investigation of her was unjust and based on inaccurate evidence but the Tribunal said that the correctness or otherwise of the Department’s decision in December 2018 was not an issue it had to determine.[4]
I think it unlikely, however, that BWY asked the Tribunal to determine whether the Department’s workplace investigation and outcomes were fair and just. I think it likely that she felt stigmatised and defamed by the principal’s evidence and was seeking to appear before the Tribunal on an equal footing with the principal and the Department, as she was entitled to do. Equality of all persons before the law is a fundamental value.[5] “All persons should prima facie be regarded as equal before the law, and no statutory body should be accorded special privileges and immunities unless it clearly appears that it was the intention of the legislature to confer them”.[6]
Conduct at issue
The Tribunal found that the principal said to the salesperson words to the effect:
I understand that BWY is working at [the vendor]. Who will be doing the presentations? Will it be BWY? … It’s not a good idea for [BWY] to come here. It wouldn’t be well received if she did the demonstration. Many staff and students have been negatively affected by her.[7]
Conduct rationalised
The Tribunal cited s 4(4) of the PPIP Act then, applying a paraphrase of a principle from Vice-Chancellor Macquarie University v FM [2005] NSWCA 192 (10 June 2005) (FM) to the different facts of BWY’s case, the Tribunal said “it was not satisfied that the Department ‘held’ the principal’s orally expressed opinion”.[8]
After that, in purported deference to the parties, the Tribunal gave its view that s 25 of the PPIP Act would have applied anyway.[9]
I (a person who values privacy and fairness) find the Tribunal’s approach perplexing. Perhaps the Tribunal did not know about its s 63 of the ADR Act duty to decide what the correct and preferable conduct is on the material then before it, including the facts and any written or unwritten law. Or perhaps the Tribunal considered that the PPIP Act ought not to operate to prevent a public agency such as the Department from identifying and managing a work, health and safety risk. If that’s the case then perhaps the Tribunal set out to justify its prejudgement and in doing so failed to perform its statutory review duty.
Review, and justice, miscarried
What the Tribunal should have done
The Tribunal should have distinguished BWY’s case from FM. It should have found a breach of the State Records Act 1998 (NSW), applied the principle against wrong-doers profiting, applied the obverse of the principle from Director General, Department of Education and Training v MT [2006] NSWCA 270 (29 September 2006), found a contravention of s 18 of the PPIP Act, found that non-compliance with s 18 was not reasonably contemplated under the Work Health and Safety Act 2011 (NSW) (WHS Act), said that s 25 did not apply, noted that the three Acts that the Department contravened could have operated together to protect everyone’s interests, then, finally, found that the Department was liable for harming BWY and made it pay.
FM not applicable
The “doctrine of precedent is based on the principle that like cases ought to be determined in a like manner so that the law provides certainty and clarity”.[10]
If the facts of FM covered BWY’s case the Tribunal was bound to apply the Court of Appeal’s holding that:
“The primary context of the legislation which gives meaning to the words ‘holds personal information’ strongly indicates that the words do not extend to information held within the mind of an employee”.
“That is how the doctrine of precedent works”.[11] The facts of FM did not, however, cover the facts in BWY.
Facts of FM
FM applied for admission as a PhD student at the University of New South Wales (UNSW). He expressly authorised UNSW to obtain his academic transcripts and other information from other universities including Macquarie University.[12]
Macquarie University provided, among other things (and in compliance with its PPIP Act obligations), the information that FM’s candidacy had been terminated by the Disciplinary Committee.[13]
A person from UNSW telephoned two employees of Macquarie University seeking background information about why FM had left Macquarie University. One employee said, “I remember … I witnessed … I overheard … I was shocked … I felt … I think …”
The other employee said, “I received … I spoke … He denied … I asked …”[14]
Facts of BWY
BWY, a teacher employed by the Department of Education, was, with the Department’s permission, undertaking secondary employment with a provider of software to schools.
At a meeting at the school where BWY had formerly taught BWY’s former principal: who was accountable to the Department “for the welfare of students and staff at the school”[15]; and whose “duties included ensuring, so far as reasonably possible, the wellbeing of staff and students at the school”[16]’ and who had “formed a view that BWY’s return to work at the School in any capacity would put the wellbeing of many staff and at least some students at risk”[17]; and who was aware that BWY worker for the software provider[18]; and who was “motivated by a wish to protect the health and safety of her staff (including herself) and students, having regard to past interactions with BWY”[19]; said to the sales person, “It’s not a good idea for [BWY] to come here … Many staff and students have been negatively affected by her.”[20].
The principal did not keep minutes or document what was said at the 30-45 minute long meeting.[21]
The facts of FM’s case do not cover the facts of BWY’s case. The employees in FM recounted their memories to the person from UNSW for UNSW’s, not Macquarie University’s, purposes. In BWY the principal gave her opinion to BWY’s secondary employer for the Department of Education’s purposes. The cases are not alike, they are distinguishable.
Tribunal’s error
The Tribunal should have borne in mind that while “reasoning by analogy is at the core of the doctrine of precedent” “one always needs to be careful about one’s analogies and not to fall into false reasoning”[22].
Because it said:
FM facts
“[A]n officer of Macquarie University disclosed to an officer of another university an opinion that a former PhD student who had applied for enrolment at that other university, was likely to cause trouble, indicated that his candidature had been terminated by the University’s disciplinary committee following reports of his conduct, and recounted his own adverse observations of the behaviour of the student.”
BWY facts
“[T]he Principal expressed opinions which she held in her own mind, to the effect that presentations by BWY would not be well received, because she had negatively affected staff and students”.
Ta da. “The principle in FM applies”[23]
Breach of the State Records Act
The Tribunal said the “principal did not keep minutes or document what was said at the 30-45 minute long meeting”[24] but it did not consider whether minutes and documentation should have been kept.
Section 12 (1) of the State Records Act requires the Department to “make and keep full and accurate records of the activities of the office”.
To be full, accurate and reliable, records needs to document the where, when, why and who of a business activity. ‘Business activities’ includes informal meetings, face to face conversations and telephone conversations. It is “particularly important to ensure records relating to legal requirements such as risk assessments are captured” (i.e. registered within an organisational record keeping system), says the State Archives and Records Authority of New South Wales.[25]
The principal assessed the risk that would allegedly occur should BWY attend the school. She managed the risk by informing the sales person that BWY should not attend the school. That disclosure was required by the State Records Act to be documented and captured on a data base. Holding the information only in her mind wasn’t an option for the principal.
Tribunal’s error
In determining BWY’s application the Tribunal was to decide what the correct and preferable conduct is having regard to the material then before it, including the any relevant factual material and any applicable written or unwritten law.[26]
It ought, therefore, to have had regard to the fact that the principal did not create and capture a record of the risk assessment as the State Records Act required.
Wrong-doers are not to profit
There is a “well established principle of law that no-one should profit by their own wrong doing”.[27] The “legislature is to be presumed not to have intended that persons who are in breach would benefit from their illegality”[28].
The Tribunal should have applied the above principle and presumed that the legislature did not intend that the Department’s failure to create and capture a record, in breach of the requirements of the State Records Act, meant that the Department did not ‘hold’ i.e. possess and control BWY’s personal information for the purposes of the PPIP Act.
When conduct is attributable
A real but unacknowledged issue in BWY’s case was whether the obverse of the principle from Director General, Department of Education and Training v MT[29] (MT) applied.
In MT the issue for the Court of Appeal was, “whether, on the facts, the Department ‘used’ the information within s16 of the Act or ‘disclosed’ the information within s18 or s19 of the Act”.[30]
Facts of MT
A school teacher employed by the Department of Education, who was also the coach of a soccer team that had no connection with the school, accessed the school’s files to find out about the health of MT, a soccer player who was also a student at the school.
The teacher: used MT’s health information to protect the soccer club from liability should MT be hurt playing soccer; and disclosed the information to the soccer club’s president.
The teacher’s access to the school file was unauthorised; the information was used and disclosed for a purpose extraneous to the school’s functions. It “was not a use or disclosure by or in connection with any activity of the Department”.[31]
Court’s holding
The Court held, “Where, as here, the “use” or “disclosure” of information was for a purpose extraneous to any purpose of the Department, it should not be characterised as “use” or “disclosure” by or “conduct” of the Department”.
Obverse principle applicable
The obverse of the above principle is: where the “use” or “disclosure” of information was for a purpose of the Department, it should be characterised as “use” or “disclosure” by or “conduct” of the Department.
And that’s the rule that the Tribunal should have applied in BWY’s case.
It should have found that the principal’s use and disclosure of BWY’s personal information was “for a purpose of the Department”, and it was, therefore, a use and disclosure by the Department and conduct of the Department.
S 25 issue a non-issue
In reference to the Department’s alternate position, that s 25 of the PPIP Act applied “because the laws of negligence and occupational health and safety” necessarily implied or reasonably contemplated the principal’s non-compliance with s 17 and s 18 of the PPIP Act,[32] the Tribunal said:
- that s 25 “would have exempted the Department from compliance” because the principal …”expressed the opinion she did, in order to obviate the risk posed to staff and students by the possible return of BWY to campus”,[33] and
- s 28 of the Work Health and Safety Act reasonably contemplated the principal’s actions in expressing an opinion designed to achieve the end of preventing BWY from attending the school so even if sections 17 or 18 had applied s 25 would have exempted the Department from compliance.[34]
The Tribunal’s approach and its conclusion are wholly fallacious.
Relevant provisions
Sections 17, 18 and 25 of the PPIP Act and s 28 of the WHS Act say:
S 17: “A public sector agency that holds personal information must not use the information for a purpose other than that for which it was collected unless …”
S 18: “A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless …”
S 25: A public sector agency is not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 if … the agency is lawfully authorised or required not to comply with the principle concerned, or … non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998).
S 28: “While at work, a worker must … take reasonable care for his or her own health and safety, and … take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons”.
Tribunal’s errors
Wrong test: s 25’s test was whether non-compliance was reasonably contemplated under s 28 of the WHS Act, and not whether s 28 reasonably contemplated that the principal would express her opinion, which is the test that the Tribunal applied.
Wrong end of the stick: the Tribunal failed to grasp that BWY was an ‘other person’ for the purpose of s 28. It didn’t therefore understand that the principal’s conduct in telling the sales person, “It’s not a good idea for [BWY] to come here … Many staff and students have been negatively affected by her”, wasn’t, as the Tribunal thought, reasonably contemplated by s 28 but was, in fact, inconsistent with the duty that s 28 imposed on the principal to take reasonable care that her acts or omissions did not adversely affect BWY.
S 25, purpose and application
The Court of Appeal said s 25’s “apparent purpose is to ensure that the Privacy Act does not override other statutory provisions with which it is inconsistent.”[35] The High Court said a “law is inconsistent with another law when the command … in one law conflicts directly with the command … in the other”[36].
Another High Court said:
“Because of the assumption that Parliament normally intends two statutes to work harmoniously together, so that each operates within its respective field of application, courts entrusted with making a judgment about the operation of the two statutes do not look at the problem in a quest to find hypothetical or possible conflicts”. That the “the issue in every case of a suggested conflict will be the practical ways in which the legislation operates together …”
There is no conflict, real or imagined, between, on the one hand, the command in s 28 of the WHS Act to take reasonable care for the health and safety of persons, and, on the other hand, the commands in s 17 and s 18 of the PPIP Act to, respectively, not use personal information for a purpose other than that for which it was collected and not disclose personal information to a person other than the individual to whom the information relates. The Acts can operate together.
The principal could have obviated “the risk posed to staff and students by the possible return of BWY to campus”[37] and complied with her s 28 duties to take reasonable care and complied with s 17’s and s 18’s prohibitions against use and disclosure, thereby protecting herself and the staff and students of the school and the health and safety and privacy rights of BWY.
All that the principal had to do was document the alleged risk and refer it to the person in the Department who had given BWY the permission to undertake secondary employment so they could extend the existing condition on BWY’s secondary employment that she “not tutor students” from the school[38] to cover “the possible return of BWY to campus, even in the capacity of a demonstrator”[39].
Compliance with the information protection principles
Subject to the Department’s compliance with s 12 – s 16, s 17 (b) would have permitted the Department to use BWY’s personal information for a purpose “directly related to the purpose for which the information was collected” and s 18 does not prohibit the disclosure of personal information to the individual concerned.
(Re collected: The Department collected the principal’s opinion because in circumstances where the Department made the principal accountable to it “for the welfare of students and staff at the school”[40] it ‘solicited’ (i.e. asked for[41]) the receipt of the principal’s opinion (s 4(5)).
Damages
The Tribunal didn’t exercise its s 55(2) of the PPIP Act jurisdiction to order the Department to pay BWY the damages she sought as compensation for the harm she suffered because of the Department’s conduct (s 55(4)(b); it couldn’t see that the Department had done anything wrong.
[1] BWY v Secretary, Department of Education [2020] NSWCATAD 208 (24 August 2020), [11-14].
[2] Ibid. [15], [21-22], [41(5)].
[3] Ibid. [7-8].
[4] Ibid. [13].
[5] Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29 (4 September 2019), [3].
[6] Townsville Hospitals Board v Townsville City Council [1982] HCA 48 (1 September 1982), [15].
[7] BWY v Secretary, Department of Education [2020] NSWCATAD 208 (24 August 2020), [41(5)].
[8] Ibid. [50-55].
[9] Ibid. [57].
[10] R v Cook [2017] NSWLC 24, (24 August 2017), [17].
[11] Australian Worldwide Pty Ltd v AW Exports Pty Ltd [2018] NSWSC 1632 (30 October 2018), [51].
[12] Vice-Chancellor Macquarie University v FM [2005] NSWCA 192 (10 June 2005), [7].
[13] Ibid. [9].
[14] Ibid. [1] and [8-10].
[15] BWY v Secretary, Department of Education [2020] NSWCATAD 208 (24 August 2020), [36].
[16] Ibid. [43(1)].
[17] Ibid. [43(4)].
[18] Ibid. [29].
[19] Ibid. [43(6)].
[20] Ibid. [41(5)].
[21] Ibid. [26].
[22] Healius Ltd v Commissioner of Taxation [2019] FCA 2011 (29 November 2019), [76].
[23] BWY v Secretary, Department of Education [2020] NSWCATAD 208 (24 August 2020), [55].
[24] Ibid. [26].
[25] <https://www.records.nsw.gov.au/recordkeeping/create-and-capture>, accessed 10 September 2020.
[26] Administrative Decisions Review Act 1997 (NSW), s 63(1).
[27] Sanger & Sanger [2011] FamCAFC 210 (28 October 2011), [90].
[28] De Marco v Chief Commissioner of State Revenue [2013] NSWCA 86 18 April 2018), [45].
[29] [2006] NSWCA 270 (29 September 2006).
[30] Director General, Department of Education and Training v MT [2006] NSWCA 270 (29 September 2006), [14].
[31] Ibid. [7-11].
[32] BWY v Secretary, Department of Education [2020] NSWCATAD 208 (24 August 2020), [8].
[33] Ibid. [59].
[34] Ibid. [60-63].
[35] Turnbull v Strange [2018] NSWCA 157 (20 July 2018), [19].
[36] Clyde Engineering Co Ltd v Cowburn [1926] HCA 6 (19 April 1926), Knox C.J., Gavan Duffy J.
[37] BWY v Secretary, Department of Education [2020] NSWCATAD 208 (24 August 2020), [59].
[38] Ibid. [16].
[39] Ibid. [59].
[40] Bwy [36].
[41] <https://www.collinsdictionary.com/dictionary/english/solicit>
