Of despots and sheep
The High Court has said:
It is “out of the question” and not a conceivable function of a judicial tribunal in a civilised country “for the tribunal to impair the obligation of a law or to attempt to make a new one … There may be legislatures which prefer to set up tribunals with despotic powers to wave aside legislation which does not please them” but judges declare, and do not make, the law.[1]
And:
“If judges do not question doubtful assumptions about the law they will just go on, sheep like, repeating legal mistakes inherited from past generations.”[2]
And that about sums up DQW v Secretary, Department of Family and Community Services [2019] NSWCATAD 213 (21 October 2019) where the NSW Civil and Administrative Tribunal (Tribunal) called an olden days (in terms of privacy law) misconstruction of a review rights and jurisdiction conferring provision of the Privacy and Personal Information Protection Act 1998 (PPIP Act) ‘principles’ then followed them and dismissed DQW’s application.
The law
Section 55(1)(b) of the PPIP Act says:
“If a person who has made an application for internal review under section 53 is not satisfied with … the action taken by the public sector agency in relation to the application, the person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the conduct that was the subject of the application under section 53.”
Not-satisfied satisfied
DQW satisfied s 55(1)(b)’s criteria. She had applied to the Department for an internal review under s 53 and was not satisfied with the action taken by the Department in relation to her application (it had refused to undertake an internal review of all of the conduct the subject of her application).
She was entitled, therefore, to apply to the Tribunal for a review of the conduct the subject of her s 53 application to the Department.
Tribunal’s rewrite of s 55(1)(b)
The Tribunal (in DQW) followed ‘principles’ from the Appeal Panel’s decision in GA v NSW Police (GD) [2005] NSWADTAP 38 (21 July 2005) who’d largely agreed with Tribunal in Y v Director General, Department of Education & Training [2001] NSWADT 149 (12 September 2001) who’d wholeheartedly agreed with the submission the Crown Solicitors Office made on behalf of the Department of Education (who’d refused to undertake a review of its conduct at all).
Misread, misconstrued (misbegotten)
The Crown Solicitors Office’s submission was, incomprehensibly, based on a misreading of s 55(1)(b), the misreading being that a person who was not satisfied with action taken by the agency in relation to their s 53 application could apply to the Tribunal for a review of the action. Whereas s 55(1)(b) said literally that, “the person may apply to the Tribunal for a review of the conduct that was the subject of the application under section 53”[3].
The Crown Solicitors Office said, “it would be strange if the legislative purpose had been that the Tribunal could review ‘each and every procedural requirement’ connected with the management of an internal review application by the agency.”[4]
The Tribunal said it agreed with the Crown Solicitors Office’s s submission “relying on s 53(7) and s 53(8) that the word ‘action’ is used in Part 5 of the Privacy Act to refer to action taken by the agency consequent on the findings of an internal review”.[5]
And s 55(1)(b) became:
If a person who has made an competent in-time application for internal review under section 53 is not satisfied with the action taken by the public sector agency in relation to the application under section 53(7) the person may apply to the Tribunal for a review of the conduct that was the subject of the application under section 53 the section 53(7) action.
(Section 53 (7) says following the completion of the internal review the agency the agency may: take no further action, apologise, pay compensation, provide an undertaking or implement administrative measures. )
Baa baa
The Tribunal in GA v Commissioner of Police, NSW Police [2004] NSWADT 254 (5 November 2004) said:
“[I]n Y v Director-General, Department of Education and Training [2001] NSWADT 149 … the Tribunal held that the word “action” in s 55(1)(b) refers to action taken by the agency after investigating the conduct and making findings … [and] it was persuaded by the Tribunal’s interpretation of s 55(1)(b) in Y v Director-General, Department of Education and Training and the reasons for his conclusion.” [6]
Baa (hiccup) baa baa
The Appeal Panel in GA said:
“If the words in s 55(1)(b) are construed as strictly as occurred in Y , then s 55(1)(b) could only be invoked in cases where the application had been accepted, and a review had proceeded to a finding …
By taking a more flexible approach to the meaning of the terms ‘action … in relation to the application’ it allows for the possibility that the present kind of case could be entertained under s 55(1)(b).
We are inclined to modify the approach expressed in Y to allow for that possibility.
But we … do not interpret s 55(1)(b) to allow the possibility that any action taken by an agency in relation to a competent application could be put before the Tribunal by way of an application for external review. This would mean that applicants could try, for example, to have reviewed the process of investigation, as it is occurring; and any other agency ‘action’ or ‘inaction’ that they might decide to light upon.[7]
Baa baa baa baa
In DQW, the Tribunal cited the Appeal Panel in GA, said it was following the principles, said the Department’s refusal letter wasn’t an action within the meaning of s 55(1) – it was a preliminary step that did not preclude DQW from seeking a review in the Tribunal (which last bit is ambiguous but I infer that the Tribunal was finding that the refusal letter did not constitute a failure to deal with a valid application).
Application dismissed
The Tribunal said that DQW had applied to the Tribunal before the necessary pre-condition that gives the Tribunal jurisdiction existed and the appropriate course was to dismiss DQW’s application for administrative review for lack of jurisdiction.[8]
Perplexed
I, a person who can read and write plain English and who values privacy and fairness, can’t understand why the Tribunal in Y accepted a construction which departed from the clear words that Parliament used and which severely curtails both the person’s right to apply and its own jurisdiction.
The High Court has said that:
“Unnecessary restraints, without the clearest foundation in the statute, should not be introduced by judges to undermine beneficial legislation …
Least of all should artificial restrictions be read into the statutory phrase which are inconsistent with the express provisions governing the initiating party’s standing rights … The provision of remedies against legally flawed decisions by public authorities (some of which, on legal analysis, may be no “decision” at all) is, after all, simply the application to such authorities of the requirement fundamental to our system of government, namely accountability to the rule of law. It renders the recipients of public power and public funds answerable, through the courts, to the people from whom the power is ultimately derived and the funds ordinarily raised by taxation, and for whose interests such recipients are, in a sense, public fiduciaries.”[9]
Neither can I understand how the Crown Solicitors Office’s submission on the construction of s 55(1)(b), that is based on a patent misreading of s 55(1)(b), has survived and been followed as ‘principles’.
(“In BQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 64 Judicial Member Britton emphasised the fact that the “action taken by the public sector agency” is action taken “in relation to the application”. In her view action taken in relation to the application could include action other than action taken following an internal review.”[10])
Applicable principles of statutory construction
“Statutory construction is the process by which meaning is attributed to statutory text.”[11]
It’s not known what principles of statutory construction, if any, the Crown Solicitors Office applied when it construed s 55(1)(b) but in the High Court’s opinion, “dislike of the effect of a statute has never been an accepted reason for departing from its plain language.”[12]
As s 55(1)(b) is a provision of a beneficial human rights Act and it confers review rights on individuals and jurisdiction on the Tribunal, the following principles of statutory construction apply when construing it.
Ordinary natural sense
“The first rule of all to be applied in construing a Statute is to ascertain the intention of the legislature from the words it has used, reading them in their ordinary natural sense in the context in which they stand, and giving to every word as far as possible its full meaning.”[13]
Express words needed to limit jurisdiction
“It is well established that “[i]t is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.”[14]
Promote the purpose of the Act
The court is required “to undertake the exercise of statutory construction with a view to promoting the purpose or object underlying the PPIP Act and the HRIP Act rather than construing the Acts in a manner which would not promote that purpose or object.” [15]
Special responsibility when protecting human rights
“[T]he principle that requires that the particular provisions of the Act must be read in the light of the statutory objects is of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation the courts have a special responsibility to take account of and give effect to the statutory purpose”. [16]
Beneficial interpretation
“Because of the “remedial” character of that legislation, this Court is obliged to afford to it a “beneficial” interpretation, that is, “… the widest interpretation which its language will permit””.[17]
“Especially where important human rights are concerned, protective and remedial legislation should not be construed narrowly lest courts become the undoers and destroyers of the benefits and remedies provided by such legislation.”[18]
Natural and ordinary meaning
“Although the rule that legislative provisions are to be construed according to their natural and ordinary meaning is a rule of general application, it is particularly important that it be given its full effect when, to do otherwise, would limit or impair individual rights.”[19]
Principles applied
Applying the principle that the words in a statute should be given their natural and ordinary meaning with the principles that beneficial human rights legislations, and provisions that confer jurisdiction, are to be given a generous, purpose-promoting construction then it’s clear s 55(1)(b) means:
“If a person who has made an application for internal review under section 53 is not satisfied with … the action taken by the public sector agency in relation to the application, the person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the conduct that was the subject of the application under section 53”.
Against the impugned ‘principles’
Action
In Y the Tribunal agreed with the Crown Solicitors Office that “the word ‘action’ is used in Part 5 of the Privacy Act to refer to action taken by the agency consequent on the findings of an internal review”.[20]
Same meaning presumed
However, the “rule that the same words which occur in different parts of a statute have the same meaning is one which “must yield to the requirements of the context” … it is “only a presumption”… It is well recognised that a word may be used in two different senses in the same section of the one Act.”[21]
Presumption yields
It’s evident from s 55(2)(b) that “action” is used in different senses in Part 5 of the PPIP Act. Section 55(2)(b) says:
“On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders: an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice”.
Plainly, ‘action’ in s 55(2)(b) does not mean ‘action taken by the agency consequent on the findings of an internal review’.
Action taken in relation to the application
There is a presumption that “words are used in a statute for a reason; they should be given their meaning and effect.”[22]
That all words have meaning is presumed
“The presumption is that it [the legislature] is saying something which has not been said immediately before. The rule that a meaning should, if possible, be given to every word in the statute implies that, unless there is good reason to the contrary, the words add something which would not be there if the words were left out”.[23]
Presumption holds
The presumption that the words “action taken by the public sector agency in relation to the application” in s 55(1)(b) are saying something new holds up because the impugned principle is purporting to give the right to a review of the s 53(7) actions, but that right was already provided (by necessary implication) in s 53(8)(c), which says: “the public sector agency must notify the applicant in writing of: the right of the person to have those findings, and the agency’s proposed action, administratively reviewed by the Tribunal”.
Re necessary implications
Statutes contain “not merely what its words actually express, but also what they necessarily imply. Necessary implication is as much part of the contents of a document as its express statements”.[24]
The fact that a person has a right to an administrative review of the findings and the agency’s proposed action necessarily implies that the person has a right to apply (and the Tribunal has the jurisdiction to review) the findings and proposed actions.
Reading words in
Words can only be read into a statute “if the application of the literal or grammatical meaning would lead to a result which would defeat the clear purpose of a statute”[25].
Therefore, words should only be read into s 55(1)(b) if its literal or grammatical meaning defeated the purpose of the statue.
Reading words in not permitted
The literal and grammatical meaning of s 55(1)(b) advances both the purpose of s 55(1)(b) and the purpose of the PPIP Act. Consequently it is not necessary to read words in (especially when the additional words (as shown bolded) defeat the clear purpose of the statute).
If a person who has made an competent in-time application for internal review under section 53 is not satisfied with the action taken by the public sector agency in relation to the application under section 53(7), or the agency’s refusal to accept a valid application, the person may apply to the Tribunal for a review of the conduct that was the subject of the application under section 53 the section 53(7) action, or the refusal to accept a valid application.
Review rights conferred
According to the natural and ordinary meaning of the words in s 55(1)(b) DQW had the right to apply to the Tribunal for a review of the Department’s conduct if she was not satisfied with the action the Department took in relation to the application she made under s53.
DQW was not satisfied with the action the Department took in refusing to review all of its conduct (the Department couldn’t have expected her to be). She had, according to law, a right to apply to the Tribunal for an administrative review of the Department’s disgraceful stonewalling hypocritical conduct.
Power to stand in Department’s shoes
The Department’s action, in refusing to undertake a review of its conduct, was not reviewable by the Tribunal – it was exercisable.
But that’s a topic for another day.
[1] Australian Boot Trade Employees Federation v Whybrow & Co [1910] HCA 8 (30 March 1910).
[2] Central Bayside General Practice Association Limited v Commissioner of State Revenue [2006] HCA 43 (31 August 2006). [82].
[3] Historical version for 8 December 2000 to 30 November 2002.
[4] Y v Director General, Department of Education & Training [2001] NSWADT 149 (12 September 2001), [67].
[5] Ibid. [72].
[6] [12-13].
[7] [24]-[27].
[8] [30].
[9] Griffith University v Tang [2005] HCA 7 (3 March 2005), [153-154].
[10] GA v Commissioner of Police, NSW Police [2004] NSWADT 254 (5 November 2004), [12].
[11] SAS Trustee Corporation v Miles [2018] HCA 55 (14 November 2018), [41].
[12] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26 (5 June 1981).
[13] Federated Engine Drivers’ & Firemen’s Association of Australasia v Broken Hill Pty Co Ltd [1911] HCA 31 (27 June 1911).
[14] Fish v Solution 6 Holdings Limited [2006] HCA 22 (18 May 2006), [33].
[15] AQO v Minister for Finance and Services [2016] NSWCA 248 (05 September 2016), [74].
[16] Waters v Public Transport Corporation [1991] HCA 49 (3 December 1991), Mason CJ and Gaudron J, [21].
[17] State of New South Wales v Amery [2006] HCA 14, (13 April 2006), [138].
[18] IW v City of Perth [1997] HCA 30 (31 July 1997), [2].
[19] Marshall v Director General Department of Transport [2001] HCA 37 (21 June 2001), [38].
[20] Y v Director General, Department of Education & Training [2001] NSWADT 149 (12 September 2001) [72].
[21] McGraw-Hinds (Aust) Pty Ltd v Smith [1979] HCA 19 (5 April 1979), Gibbs J, [4].
[22] Saeed v Minister for Immigration and Citizenship [2010] HCA 23 (23 June 2010), [39].
[23] Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs [1992] HCA 64 (8 December 1992), [10].
[24] Hirsch v Zinc Corporation Ltd [1917] HCA 55 (12 October 1917).
[25] Momcilovic v The Queen [2011] HCA 34 (8 September 2011), [580].
