AHS v Roads and Maritime Services
[2012] NSWADT 116
•15 June 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: AHS v Roads and Maritime Services [2012] NSWADT 116 Hearing dates: On the papers Decision date: 15 June 2012 Jurisdiction: General Division Before: N Isenberg, Judicial member Decision: Order under subsection 55(2) of the Privacy Act to take no action on this matter.
Catchwords: Demerit points – collection of information – use by agency Legislation Cited: Privacy and Personal Information Protection Act 1998
Road Transport (Driver Licensing) Regulations 2008Cases Cited: JD v Department of Health (GD) [2005] NSWADTAP 44
JD v NSW Medical Board [2005] NSWADT 247
MT v Department of Education and Training [2004]NSWADT 194Category: Principal judgment Parties: AHS (Applicant)
Roads and Maritime Services (Respondent)Representation: AHS (Applicant in person)
Henry Davis York (Respondent)
File Number(s): 113346
REASONS FOR DECISION
Background
The applicant, 'AHS', is a citizen of Egypt. Upon his arrival in Australia he drove using his overseas licence, until, in October 2010 he began to take steps to obtain a NSW licence. In November 2010 he passed the driving test. Shortly thereafter he sought advice from the RTA (as the relevant part of the respondent was then known) about the effect of accumulated demerit points on an international licence, but received conflicting advice. Ultimately, the 18 demerit points he had acquired in the preceding 3 years while driving on his international licence were transferred to his new NSW licence, which was, as a result, suspended.
The applicant submitted that the respondent breached the Privacy and Personal Information Protection Act 1998 (the Privacy Act ) by its collection of information about the demerit points acquired while on his international licence, by its failure to check the accuracy of that information, and the use and disclosure of that information.
The applicant seeks a review of the respondent's conduct pursuant to section 55(1) of the Privacy Act.
Collection of personal information
The applicant submitted that the respondent had contravened s.8 of the Privacy Act, alleging that his personal information has been unlawfully collected. There was no dispute that demerit point information constitutes "personal information" for the purposes of the definition in section 4 of the Privacy Act.
The applicant submitted that the collection of demerit point information was prohibited under cl.99(4)(a) Road Transport (Driver Licensing) Regulations 2008 (the Licensing Regulations), and therefore the respondent had contravened s.8 of the Privacy Act which prohibits a public sector agency from collecting personal information unless the information is collected for a lawful purpose that is directly related to a function or activity of the agency, and the collection of the information is reasonably necessary for that purpose. Further, as a public sector agency must not collect personal information by any unlawful means, the applicant submitted, somewhat circuitously, that the collection of demerit points was unlawfully collected.
Clause 99(1)(b) of the Licensing Regulations authorises a visiting driver who holds a current foreign driver licence and international driving permit to drive a motor vehicle and provides for that driver to be (generally) exempt from the requirements of the Act and Regulations.
Pursuant to s.14(1) of the Road Transport (Driver Licensing) Act (the Licensing Act), the respondent is obliged to maintain a demerit point register where 'a person's' demerit points are recorded: s14(2) and s14(3). This includes all persons who are driving on New South Wales roads, irrespective of their licence status as there are no statutory exceptions or exemptions: if any person commits an offence, the respondent must record the relevant demerit points against that person. Clause 99(1)(b) does not, exempt the respondent from its obligations to maintain a demerit point register, in respect of all persons, including those driving on foreign licences.
The applicant's submission is ill-conceived. It was clear to me that the respondent was entitled to collect the applicant's demerit point information pursuant to s.8(1) of the Privacy Act because the information was collected for a lawful purpose that was directly related to its activity of maintaining a demerit point register, and the collection is reasonably necessary for that purpose. At the heart of the collection of demerit point information is the promotion of traffic management and safety, which, even on general principles, is a core function of the respondent.
When a public sector agency collects personal information it must take reasonable steps to ensure that the individual to whom the information relates is made aware that the information is being collected, the purposes for its collection, the intended recipients of the information, whether the supply of the information is required by law or is voluntary, and any consequences for the individual if the information (or any part of it) is not provided, the existence of any right of access to, and correction of, the information, the name and address of the agency that is collecting the information and the agency that is to hold the information: s.10 Privacy Act.
The applicant submitted that he was never informed that demerit point information was being collected about him, and accordingly, the respondent had contravened s.10 of the Privacy Act.
The respondent submitted, and I accept, that it is exempt from compliance with s.10 of the Privacy Act. Section 23(3) of the Privacy Act relevantly states:
A public sector agency (whether or not a law enforcement agency) is not required to comply with section 10 if the information concerned is collected for law enforcement purposes. ....
The Tribunal has interpreted the words "law enforcement purposes" to be related to the conduct of policing or police-like functions related to the criminal law and the enforcement of criminal offence provisions: JD v Department of Health (GD) [2005] NSWADTAP 44 at [98]; JD v NSW Medical Board [2005] NSWADT 247 at [72]-[73]). The demerit point information is information that relates to law enforcement. Demerit points are incurred in connection with committing offences in contravention of the road rules. In the respondent's submission, which I accept, the collection of demerit point information is inextricably linked with the enforcement of the criminal law, and accordingly, the respondent is entitled to rely upon the exemption in cl.23(3).
Accuracy of personal information
A public sector agency that holds personal information must not use the information without taking reasonable steps to ensure that the information is relevant, accurate, up to date, complete and not misleading: s.16 Privacy Act. It was unclear however in what regard the applicant was asserting that the respondent had breacheds.16.
I note that the initial onus in an allegation of a contravention of s.16 of the Privacy Act rests on the complainant to show that there was a use which involved irrelevant, inaccurate, out of date, incomplete or misleading information: MT v Department of Education and Training [2004] NSWADT 194 at [185]. There was no evidence before me that the applicant's demerit point information was in any way incorrect; nor indeed was there any denial by the applicant that he had in fact accumulated the 18 demerit points. I find there to have been no breach of s.16 of the Privacy Act.
Limits on use of personal information
The applicant alleged a contravention of s.17 of the Privacy Act, in that the respondent had improperly used his personal information. Section 17 provides that a public sector agency must not use personal information for a purpose other than that for which it was collected unless the individual to whom the information relates consented to the use of the information for the other purpose, or the other purpose directly related to the purpose for which the information was collected, or the use of the information for the other purpose is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual to whom the information relates or of another person.
It was not disputed that the respondent used the applicant's demerit point information for the purpose of suspending his driver licence. The respondent submitted however, and I accept, that it is obligated to hold demerit point information for the purposes of suspending driver licences where an individual accrues 13 or more demerit points. The respondent did not use the demerit point information for any other purpose. Accordingly, I accept that the respondent did not contravenes.17 of the Privacy Act.
Limits on disclosure of personal information
Section 18 limits the disclosure of personal information. A public sector agency must not disclose personal information unless, relevantly, the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with s 10, that information of that kind is usually disclosed to that other person or body.
The applicant submitted that the demerit point information collected was improperly disclosed by one part of the respondent to another, or to another external body. The applicant's submissions referred to alleged representations made by the respondent at the planning meeting on 31 January 2012, suggesting that demerit point information may be forwarded to other government departments such as the NSW Police Force. The respondent did not admit that at any time it made such a representation that demerit point information was "forwarded" to other government departments, and there was no evidence before me that this had in fact occurred with respect to the applicant. In any event, as was clear, the collection and use of the applicant's demerit point information was all was within the respondent agency and it could not properly be said that the information, in those circumstances, had been 'disclosed'.
The applicant noted that there is no express provision which states that demerit points accumulated while holding an overseas license would automatically transfer to a subsequentNSW licence. This observation, it seems to me, is at the heart of the applicant's concerns. The applicant drove in Australia for 3 years on an overseas licence. During that time he acquired 18 demerit points. A NSW licence holder would have had his or her licence suspended at 13. The holder of an overseas licence cannot expect to drive with impunity: the applicant's poor driving record caught up with him when he sought a NSW driver's licence.
In light of my findings the appropriate order is an order under subsection 55(2) of the Privacy Act to take no action on this matter.
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Decision last updated: 15 June 2012
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