AEC v Commissioner of Police, NSW Police Force

[2012] NSWADT 4

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

AEC v Commissioner of Police, NSW Police Force [2012] NSWADT 4

Hearing dates:

On the papers

Decision date:

18 January 2012

Jurisdiction:

General Division

Before:

N Isenberg, Judicial member

Decision:

1. The Tribunal has jurisdiction to entertain the application for review.

2. The matter is listed for planning meeting on 28 February 2012 at 2pm.

Legislation Cited:

Privacy and Personal information Protection Act 1998,

Cases Cited:

EM v Department of Education and Training (No 2) [2010] NSWADT 141
Department of Education and Training v EM [2011] NSWADTAP 4
BQ v Commissioner of Police, NSW Police Service [2002] NSWADT 64
LN v Sydney South West Area Health Service [2010] NSWADTAP 36

Category:

Interlocutory applications

Parties:

AEC (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

AEC (Applicant in person)
Frank Gaha NSW Police Force (Respondent)
Privacy Commissioner of NSW

File Number(s):

113170

reasons for decision

Background

1. The Applicant "AEC" is seeking review by the Tribunal under the provisions of the Privacy and Personal information Protection Act 1998, (PPIP Act) of the Respondent's conduct alleged to have occurred between February 2010 and June 2010 which he alleges breached his privacy.

1. The Respondent, relying on section 53(d) of the PPIP Act, declined to accept the Applicant's initial complaint/application for internal review because at the time of receipt of the Applicant's application in March 2011, more than six months had elapsed since the conduct which the Applicant alleged breached his privacy. The Applicant subsequently applied to the Tribunal for a review of the Respondent's refusal to deal with his application.

1. The matter was listed for a Planning Meeting on 2 August 2011. The Respondent objected to the jurisdiction of the Tribunal to entertain the review application. The parties were invited to make submissions and agreed that the Tribunal would make its decision in relation to this issue on an interlocutory basis, and on the papers.

Relevant legislation

53 Internal review by public sector agencies

(3) An application for such a review must:

(d) be lodged at an office of the public sector agency within 6 months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct the subject of the application.

Background

1. There is no real dispute as to the factual background.

1. On 4 February 2010, the Applicant was charged by officers of the New South Wales Police Force (the Respondent) with common assault upon his then partner.

1. According to the Applicant, on 27 February 2010 he was contacted by his work manager and was asked about the charge and was required to provide a full account of the event as soon as possible.

1. On 12 April 2010 the Applicant wrote to the NSW Ombudsman who then forwarded the Applicant's correspondence to the Respondent. The A pplicant alleged that [named] officers of the respondent were likely to have provided information relating to the charge to his employer. The Ombudsman declined to investigate at that time because the charges had not been heard. The complaint was declined by the R espondent on 30 April 2010.

1. On 1 June 2010, when the charge was listed for hearing, it was dismissed.

1. In mid June 2010 the Applicant received a Family Court affidavit which stated that police had informed his ex-partner that he had a criminal record.

1. On 2 March 2011 the Applicant wrote to the Respondent, alleging that officers of the Respondent had informed his ex-partner of a spent conviction 25 years ago and he referred again to his complaint that police had contacted his employer. He enquired as to what redress was available to him because of the breach of his privacy.

1. On 15 March 2011 the Respondent's internal solicitor wrote to the Office of the Privacy Commissioner of NSW (OPC) enclosing the Applicant's correspondence. As part of its notification the Respondent wrote that u ntil more information was received, it was not prepared to treat the matter as a formal application for internal review under the PPIP Act.

1. On the same day the Respondent's solicitor also wrote to the Applicant acknowledging receipt of his application and informing him that he could either request that NSWPF conduct an internal review under Part 5 of the PPIP Act or could make a complaint directly to the OPC. It was noted that generally complaints must be made within 6 months of the complainant first becoming aware of the conduct the subject of the complaint, but the letter did not raise any issue about the timeframe in this particular matter. The Applicant was asked to identify the specific conduct which he alleged constituted a breach of his privacy. The solicitor wrote that he did not believe that the Applicant had at that time supplied sufficient specific information such that would allow the matter to be progressed. He wrote that he required much more detail about the specific conduct the Applicant had referred to which was alleged to have breached his privacy. For emphasis, the solicitor added that information about what occurred, when, by whom and in relation to what, would assist in obtaining information about the complaint. No deadline was given for the provision of the information.

1. Again, on the same day, the Applicant sent to the Respondent an application for internal review, which was not received by the Respondent until about 24 March 2011. There, relevantly, the A pplicant wrote he first became aware of the conduct of which he complains on 27 February 2010 when he received a request for information from his employer and on 17 June 2010 when he received his [ex-partner's] affidavit.

1. Meanwhile, on 22 March 2011 the Respondent's solicitor wrote to both the Applicant and the OPC advising that the Respondent was not prepared to extend time to accept the Applicant's complaints because more than six months had elapsed since the conduct of the Respondent which the Applicant alleged has breached his privacy occurred.

1. On 6 April 2011 the solicitor again wrote to both the Applicant and the OPC repeating that it was not prepared to extend time to accept the Applicant's complaints.

1. On 14 April 2011 OPC wrote to the Respondent 's solicitor requesting the Respondent reconsider its position that the matter fell outside the statutory time limits and to accept that the Applicant was seeking to exercise his right to seek a resolution to what he believed was a breach of his privacy under s53 of the PPIP Act.

1. On 28 April 2011 the Respondent's solicitor wrote to the Applicant informing him that a s a result of the OPC's representations it had determined that it would further examine the issues he had raised 'with a view to initially determining whether or not your complaint will ultimately be accepted'. The solicitor confirmed that it was necessary for inquiries to be made elsewhere within NSWPF in relation to the issues raised by the A pplicant , prior to any final determination being made regarding whether the complaint would be accepted. He foreshadowed that these inquiries might take some time to finalise.

1. On 29 April 2011 the Respondent made internal enquiries in relation to what constituted the Applicant's original complaint. Documents were supplied which confirmed that the Applicant's original application comprised of the documents in relation to the A pplicant's complaint about disclosure of information to his employer.

1. On 6 June 2011 the solicitor informed the Applicant (and wrote to the OPC in similar terms) that f ollowing the completion of further enquiries he had determined that the matters raised in the internal review application differed substantially to the original complaint. He (incorrectly) referred to that complaint as being in relation to conduct of officers of the Applicant 's employer, whereas in the internal review application, there was, by inference, only an allegation that officers of the NSWPF released details of a spent conviction to a third party. It remained the Respondent's position that the matter fell outside the statutory time limits obliging it to conduct an internal review and that it was not prepared to extend time to accept the out of time complaints.

1. In his application for review the Applicant referred only to th e disclo s ure of information to his ex-partner, although he attached correspondence in relation to both complaints. He also wrote that he h a d been told noth i ng [about privacy rights] by his counsel in the court proc e edings and only 'found out more during the hearing into discrimination of employment' between 1 August 2010 and 8 March 2011.

1. The Applicant provided a letter from the solicitors who represented him in the criminal proceedings dated 29 July 2011 that at no time did they discuss with him his complaint of the release of his personal information. In addition they confirmed that they did not provide any advice in relation to limitation periods in respect of privacy complaints.

Consideration

1. Before an application under the PPIA Act matter may be considered on review by the Tribunal ther e must first be a competent application to the agency: BQ v Commissioner of Police, NSW Police Service [2002] NSWADT 64.

1. The issue for the Tribunal is whether it has jurisdiction to consider the application for review , which turns upon whether the A pplicant made his request for review within the time specified in section 53(3)(d) of the PPIP Act.

1. In LN v Sydney South West Area Health Service [2010] NSWADTAP 36, at [15], the Appeal Panel recognised the "conundrum" created because section 53 speaks of an applicant's 'awareness' of conduct. In noting the beneficial purpose of the legislation, the Appeal Panel held that time begins to run from when a complainant becomes aware not only of the alleged improper disclosure but also 'of the possibility that the disclosure may contravene the privacy laws ...'

1. Also, the Tribunal at first instance in EM v Department of Education and Training (No 2) [2010] NSWADT 141, at [9], recognised that there may be two types of event from which a time limit may begin to run, namely, the conduct in question, and when there was an awareness of that conduct by the complainant. On appeal, in Department of Education and Training v EM [2011] NSWADTAP 4 the Appeal Panel referred to previous High Court and Court of Appeal judgments and preferred a beneficial approach to the interpretation of the section, holding to the effect, that time begins to run from when a complainant becomes aware of both the alleged conduct and its legal significance . At [15] the Appeal Panel concluded:

It would be unfair for the protection to be forfeited before they (complainants) knew of the conduct and of the rights that conduct allowed them to exercise. (my emphasis)

1. The Respondent accepted that the above position is the current articulation of the law on this point and that I am bound to follow it. However, the Respondent nonetheless submitted that the Appeal Panel had erred 'in depicting the question of when a person becomes aware of conduct by imposing a subjective test upon parties when determining the out of time issue'.

1. In canvassing the above decisions, the Respondent submitted that section 53(3)(d) is clear and unambiguous and does not lend itself to the interpretation given to them in those decision; the words of the section referring only to awareness of the conduct (that a disclosure has been made) and do not, extend to "awareness" of the legal implications of the conduct.

1. The R espondent referred me, by comparison with section 53(3)(d), to other legislative provisions such as section 89B of the NSW Anti Discrimination Act 1977 and section 46PH of the Australian Human Rights Commission Act 1986 . However, both these sections refer only to the date of the conduct in relation to the date of complaint and, unlike section 53(3)(d), are silent as to the issue of a complainant's awareness of the conduct. I therefore do not find those references to be relevant.

1. I agree that I am bound by LN v Sydney South West Area Health Service and Department of Education and Training v EM .

1. I turn then to the application of the principles of those cases to the facts in this matter. In his application for review filed on 29 June 2011, the Applicant referred only to the Respondent's conduct as it pertained to the disclosure of information to his ex-partner. He did, however, attach correspondence in relation to both complaints.

1. In his application for internal review, he wrote he first became aware of the conduct of which he complains on 27 February 2010 when he received a request for information from his employer. I accept this to be the case. It is clear to me that his letter of 12 April 2010 the Applicant had clearly raised his concerns about disclosure to his employer with both the Respondent and the Ombudsman.

1. In his application for internal review, he wrote that on 17 June 2010 he first became aware of the other conduct of which he complains when he received his [ex-partner's] affidavit. I accept this to be the case. This matter was squarely raised with the R espondent on 2 March 2011 when he wrote to the Respondent enquiring as to what redress was available to him because of both alleged breaches of his privacy.

1. The Applicant then lodged a formal application for internal review of the conduct which was received by the Respondent on 24 March 2011.

1. In his application for review by this Tribunal the Applicant wrote that he had been told nothing [about privacy rights] by his counsel in the court proceedings. The letter from his solicitors confirm this to be the case. He wrote that he only 'found out more during the hearing into discrimination of employment' between 1 August 2010 and 8 March 2011. In his submissions the Applicant elaborated that he became aware of the of the implications of the conduct in January or February 2011 "after discussions with the Anti Discrimination Board about ADT and finding out more about Privacy Commission through this discussion and its link to ADT". I accept that that was the earliest time he was aware of his rights. It was not even clear to me though that he in fact was aware of his legal recourse under the PPIP Act at the time he wrote to the Respondent on 2 March 2011 enquiring as to 'redress' for alleged breaches of privacy. I find that he first became aware of his entitlement on 15 March 2011 when he was informed of his options by the solicitor for the Respondent.

1. In summary, I find that the Applicant became aware of the alleged conduct more than 6 months before he lodged his internal review application, but that that he only became aware of his rights under the PPIP Act less than 6 months before he lodged his application.

1. I therefore find that the Tribunal has jurisdiction to entertain the application for review. The matter is listed for planning meeting on 28 February 2012 at 2pm.

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Decision last updated: 18 January 2012