AT v Commissioner of Police, New South Wales Police Force (GD)

[2009] NSWADTAP 1

Appeal Panel - Internal

CITATION:	AT v Commissioner of Police, New South Wales Police Force (GD) [2009] NSWADTAP 1
PARTIES:	APPELLANT AT RESPONDENT Commissioner of Police, New South Wales Police Force
FILE NUMBER:	089024
HEARING DATES:	20 August 2008
SUBMISSIONS CLOSED:	20 August 2008
DATE OF DECISION:	16 January 2009
BEFORE:	O'Connor K - DCJ (President); Montgomery S - Judicial Member; O'Neill A - Non-Judicial Member
CATCHWORDS:	Privacy and Personal Information Protection Act – Applications to Tribunal under s 55 for Review of Conduct – Whether there is a Time Limit – No express provision – Time Limits governing Applications for Review of Reviewable Decisions not applicable – ‘Reasonable Time’ limit may be implied into s 55 – Consideration of what is a ‘reasonable time’ – Appeal dismissed
DECISION UNDER APPEAL:	AT v Commissioner of Police, New South Wales Police [2008] NSWADT (14 December 2007)
FILE NUMBER UNDER APPEAL:	073195
DATE OF DECISION UNDER APPEAL:	12/14/2007
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Amendment Act 2008 Anti-Discrimination Act 1977 Freedom of Information Act 1989 Privacy and Personal Information Protection Act 1998 Retail Leases Act 1994
CASES CITED:	AT v Commissioner of Police, New South Wales Police Force, unreported ex tempore decision, 14 December 2007 Bermingham v Corrective Services Commission (1988) 15 NSWLR 292 Commissioner of Police v LZ [2008] NSWADTAP 22 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 Fitzpatrick v Ambulance Service of NSW [2003] NSWADT 132 Gartside v. Inland Revenue Commissioners [1967] UKHL 6; (1968) AC 553 GQ v NSW Department of Education and Training [2008] NSWADT 212 HBF of Western Australia v Minister for Health, Housing and Community Services (1992) 111 ALR 1 Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 Oceanic Sun Line Inc v Fay (1988) 165 CLR 197 PC v University of New South Wales (No 2) [2005] NSWADT 264 R v Skurray (1967) WN (Pt 1) (NSW) 1 R v Young (1999) 46 NSWLR 681 Re Federal Commissioner of Taxation; Ex parte Australena Investments Pty Ltd (1983) 50 ALR 577 Re Teutonia Lodge [1923] VLR 533 Roach v Truth and Sportsman Ltd (1938) 55 WN (NSW) 77
REPRESENTATION:	APPELLANT A Anforth, counsel / D Steiner, Capital Lawyers RESPONDENT E Brus, counsel / F Gaha, New South Wales Police Force
ORDERS:	1. Appeal as to question of law upheld. Otherwise, appeal dismissed. 2. Decision under appeal affirmed.

1 This appeal relates to an application under the Privacy and Personal Information Protection Act 1998 (the Privacy Act) for review of the respondent agency’s conduct. The Tribunal dismissed the application on the basis that it was out of time: see AT v Commissioner of Police, New South Wales Police Force, unreported ex tempore decision, 14 December 2007. The applicant now appeals.

2 The appellant’s complaint is that personal information about her was wrongly disclosed to a third party and its security not maintained, in breach of the relevant information protection principles found in the Privacy Act. On 20 January 2005 she contacted the Police Freedom of Information Unit to find out why she had not received documents containing personal information about her that had been promised to her in response to a Freedom of Information request. She was advised that they had mistakenly been sent to someone else on 5 January 2005. The applicant made a complaint to the agency under the Privacy Act in the form of an application for internal review dated 8 March 2005. The agency issued its internal review report on 6 June 2005. In that response the author expressed the opinion that the conduct ‘may have’ breached the Information Protection Principles. The agency apologised, and stated that action had been taken to prevent a recurrence.

3 The applicant applied to the Tribunal for it to review the conduct on 20 June 2007, more than two years’ later. The agency submitted that the application was out of time, and there was no reasonable explanation for the delay. The Tribunal agreed. The Tribunal held that the 28 day time limit on applications for internal review of reviewable decisions set by the rules made under s 55 of the Administrative Decisions Tribunal Act 1997 (the ADT Act) was applicable, and the discretion to extend time given by that Act, s 57, ought not in the circumstances be exercised.

4 The applicant has appealed on a question of law basis only. There is no application to extend the appeal to the merits. The Privacy Commissioner exercised his right of audience before the Tribunal (Privacy Act, s 55(7)), and submitted that the Tribunal had erred.

5 Their primary submission is ss 55 and 57 of the ADT Act have no application to the lodgement of applications with the Tribunal under the Privacy Act. Accordingly, any refusal to entertain an application would have to rely on other heads of power available to the Tribunal; for example, s 73 of the ADT Act gives the Tribunal power to dismiss ‘at any stage’ any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance: s 73(5)(h). Until the decision now under appeal, that was also the view preferred in the Tribunal: see Fitzpatrick v Ambulance Service of NSW [2003] NSWADT 132 (Hennessy DP); agreed in obiter, PC v University of New South Wales (No 2) [2005] NSWADT 264 (O’Connor P); GQ v NSW Department of Education and Training [2008] NSWADT 212 (Handley DP), decided at a date later than the decision under appeal which was considered and not followed.

Background

6 The ADT Act divides the overall jurisdiction of the ADT into two categories: the review jurisdiction, i.e. the jurisdiction to review ‘reviewable decisions’; and original jurisdiction. The latter term is used to describe all applications to the Tribunal where the first binding decision is to be made in relation to a matter. So it covers, for example, applications for orders under the Anti-Discrimination Act 1977, applications for orders under the Retail Leases Act 1994 and applications for original disciplinary orders.

7 The ADT Act does not refer to applications for the review of ‘conduct’. In various Tribunal decisions there has been discussion of the question of whether applications to the Tribunal made under the Privacy Act fall on the ‘review’ or ‘original’ decisions side of the line drawn by the ADT Act. In that regard the Tribunal has adopted the view that Privacy Act applications do belong to the review jurisdiction of the Tribunal, as distinct from the original decisions jurisdiction (see, in particular, the case previously cited, PC v University of New South Wales (No 2)), and that matter has now been put beyond doubt by an amendment to the ADT Act: see Administrative Decisions Tribunal Amendment Act 2008, Schedule 1, item [1], new s 8(2), commenced 1 January 2009.

8 The only references in the Privacy Act to the ADT Act and to the jurisdiction of the Tribunal appear in Part 5 (Review of certain conduct), ss 52-56.

9 Section 52 is headed ‘Application of Part’. It sets out the categories of matters that can be raised before the Tribunal by a person aggrieved by the conduct of an agency. Section 53 of the ADT Act is expressly disapplied. Section 52(4) provides:

‘(4) Section 53 (Internal reviews) of the Administrative Decisions Tribunal Act 1997 does not apply to or in respect of conduct to which this Part applies.’

10 Section 55 of the Privacy Act deals with the orders that the Tribunal may make where it upholds a complaint under the Act. Section 55(3) states:

‘(3) Nothing in this section limits any other powers that the Tribunal has under Division 3 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997 .’

11 Division 3 of Part 3 of Chapter 5 is headed ‘Powers on Review’ and sets out the principles that the Tribunal is to observe in undertaking the determination of an application for a review of a reviewable decision including the kind of orders that can be made (the well known s 63), the way it is to apply Government policy where a relevant policy affects the circumstances (s 64), confers a power to remit the matter for further consideration (s 65) and deals with the effect of a review decision, i.e. a decision by the Tribunal (s 66).

12 Then s 56 of the Privacy Act confers a right to appeal to the Appeal Panel of the Tribunal under Part 1 of Chapter 7 of the ADT Act. This is the Part which governs the Internal Appeals jurisdiction of the ADT.

13 An intention can, perhaps, be discerned from these provisions read as a whole that all of the provisions in the ADT Act to do with the review of reviewable decisions jurisdiction, including the ADT Act’s time limits, are to apply mutatis mutandis (with the textual changes required being made) to applications for review of conduct made to the Tribunal under the Privacy Act. This was, in effect, the position adopted by the Tribunal in this case.

14 Accordingly it considered that the usual time limit provision set by s 55 of the ADT Act applied. If a mutatis mutandis approach is taken to s 55 the references to ‘reviewable decision’ would be replaced by references to ‘conduct’ in the following way:

‘ 55 When can an application for a review be made?

(1) A person may apply to the Tribunal for a review of a [conduct] only if:

(a) the application is made by an interested person, and

(b) an internal review is taken to have been finalised under section 53 (9), and

(c) the application is made in the manner prescribed by the rules of the Tribunal, and

(d) the application is made within such period as may be prescribed by the rules of the Tribunal following the date on which the internal review is taken to have been finalised under section 53 (9).

Note. Section 4 defines interested person to mean a person who is entitled under an enactment to make an application to the Tribunal for an original decision or a review of a [conduct] (as the case may be).

(2) However, subsection (1) (b) or (d) does not prevent a person from making an application in respect of [conduct] that has not been the subject of an internal review under section 53 if the Tribunal is satisfied that:

(a) the person was not at any time entitled to apply for an internal review of the decision, or

(b) the person made a late application for an internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the decision of the administrator concerned, or

(c) it is necessary for the Tribunal to deal with the application in order to protect the person’s interests and the application to the Tribunal was made within a reasonable time following the decision of the administrator concerned.

(3) In determining whether a late application for internal review was unreasonably refused or whether an application to the Tribunal was made within a reasonable time for the purposes of subsection (2), the Tribunal is to have regard to:

(a) the time when the applicant became aware of the [conduct], and

(b) in a case to which subsection (2) (b) applies—the period prescribed by or under section 53 for the lodging of an application for an internal review, and

(c) such other matters as it considers relevant.’

15 But this set of changes does not solve the problem. A difficulty remains. As noted, s 52(4) of the Privacy Act disapplies s 53 of the ADT Act. Most importantly the Privacy Act has no provision equivalent to s 53(9). As will be seen, this is the link provision for the purpose of the operation of the time limit rules applying to applications for review of reviewable decision: see ADT Act, s 55(1)(b), s 55(1)(d) and s 55(2)(b) read in conjunction with s 55(3)(b). Section 53(9) provides:

‘(9) When an internal review is finalised

An internal review is taken to be finalised if:

(a) the applicant is notified of the outcome of the review under subsection (6), or

(b) the applicant is not notified of the outcome of the review within 21 days after the application for the review is lodged (or such other period as the administrator and person agree on).

Note. Section 55 provides that an interested person may apply for a review of a reviewable decision once an internal review of the decision is taken to be finalised under this subsection.’

16 The Privacy Act’s internal regime is found in s 53 of that Act. Sub-sections (1) to (8) address similar matters to those addressed by various sub-sections of the ADT Act’s general regime. There is a time limit imposed on agencies as to how long they can take to conduct an internal review of a privacy complaint: if it is not done within 60 days, the applicant may proceed to apply to the Tribunal for review of the conduct (sub-section (6)). Section 53(8) provides:

‘(8) As soon as practicable (or in any event within 14 days) after the completion of the review, the public sector agency must notify the applicant in writing of:

(a) the findings of the review (and the reasons for those findings), and

(b) the action proposed to be taken by the agency (and the reasons for taking that action), and

(c) the right of the person to have those findings, and the agency’s proposed action, reviewed by the Tribunal.’

17 It is the absence of a provision equivalent to s 53(9) in the Privacy Act’s internal review regime that has led the Tribunal to conclude (apart from on this occasion) that there is no way a time limit can be fixed for filing applications for review of conduct. There is no clarity as to the starting point calculation. On the other hand, the Tribunal on this occasion, after considering the leading case, Fitzpatrick, held that the references to s 53(9) in s 55 of the ADT Act should be replaced by references to s 53(8) of the Privacy Act. The Tribunal also referred to s 53(6), which provides:

‘(6) The review must be completed as soon as is reasonably practicable in the circumstances. However, if the review is not completed within 60 days from the day on which the application was received, the applicant is entitled to make an application under section 55 to the Tribunal for a review of the conduct concerned.’

18 The member on this occasion considered the view expressed in Fitzpatrick and differed for the following reason:

‘24 … In Fitzpatrick (supra) at [17] Deputy President Hennessy made reference to the fact that there was no express provision in the Privacy Act which provided that an internal review under that Act was finalised when the person requesting the review had been notified of the agency’s review determination. In my opinion, sub-section 53(8) of the Privacy Act, although not expressed exactly in these terms is to such an effect. As mentioned above, that sub-section requires an agency to provide the person who has made the internal review request with notification, in writing, as soon as practicable, or in any event within 14 days after the agency has completed the review. Where notification is given this must be the date on which an internal review under the Privacy Act is finalised. If notification is not given within 74 days (i.e. 60days (under s.53(6)) plus 14 days (under s.53(8))) from the date on which the person made his/her application for internal review, this must be the date on which the internal review is deemed to have been finalised.

25 Having regard to the time limits that are expressly provided in regard to making a request for internal review of conduct of an agency and time limits on agencies to make a review that conduct and to notify the person who requested the review of its determination, I find it difficult to accept that Parliament intended that there be no time limit within which a person could seek external review of conduct of an agency pursuant to the Privacy Act.

26 Accordingly, in my view, paragraphs 55(1)(b) and (d) of the ADT Act should only be read down only to the extent reference is made to sub-section 53(9) of the ADT Act and should be construed in the case of application for external review of conduct under the Privacy Act as referring to the finalisation of an ‘internal review’ determination under section 53 of the Privacy Act. This construction, in my opinion, is not inconsistent with the terms of sub-section 52(4) of the Privacy Act and would give effect to the overall objective and purpose of the provisions of that Act. It would of course be preferable if the Privacy Act were to be amended to make this expressly clear.’

19 In contrast, these issues are dealt with clearly in the Freedom of Information Act 1989, another Act which substitutes its own internal review regime for that of the ADT Act. The applicant must apply to the Tribunal within 60 days after notice of determination is given by the agency following internal review (or there is a deemed notice because of failure by the agency to meet the time line bearing on it): see FOI Act, s 54.

20 As the Tribunal noted in the present case, the provisions of s 53 of the Privacy Act are clear as to the time limit that applies to lodgement of internal review applications, and the time limit within which the agency is to deal with the application. It is unlikely that there was any intention to leave the time limit for filing in the Tribunal at large at that point. The intention, probably, was to pick up all the provisions of Part 3 of the ADT Act from that point onwards including s 55’s time limit provisions. The President’s observation in PC (No 2) that there may have been a deliberate intention not to deal with time limits is (the President agrees on reflection) unlikely. The President referred to the difficulty that may face an applicant in applying to the Tribunal immediately because he or she may want to see how any action proposed by the agency works out in practice. This observation did not take account of the terms of s 53(8) which speak of ‘the right of the person to have … the agency’s proposed action, reviewed by the Tribunal’.

Submissions

21 We have received detailed submissions from the appellant’s solicitor, from the Privacy Commissioner and from the agency. The agency notes that parties to litigation are entitled to be assured that litigation is conducted within reasonable time frames, and that it would be unfair to the agency to allow this case to proceed so long after the internal review process concluded.

22 The appellant’s position, and similarly the Privacy Commissioner’s, is simple – the draftsperson made an error. The appellant refers to the debate in the leading cases on when it is appropriate for words to be read into a statute to plug a drafting error.

23 The following summary of the principles is, we consider, accurate:

1. That words should not be read into a statute unless there is a ‘clear necessity’ to do so

2. The court or tribunal must know the mischief with which the Act is dealing

3. The court or tribunal must be satisfied that a drafting error has occurred

4. The court or tribunal must be satisfied that the drafting error has caused the purpose of the Act to miscarry

5. The court or tribunal must be able to state with certainty what words Parliament would have used to overcome the drafting omission if its attention had been drawn to the matter

6. If the above are not all satisfied then the drafting error is a matter for the Parliament to correct.

24 See, for example, Bermingham v Corrective Services Commission (1988) 15 NSWLR 292 at 302. See also Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423; R v Young (1999) 46 NSWLR 681 at 687-688. Generally, see Pearce & Geddes [2.28] – [2.33].

25 A leading authority in relation to drafting oversights is Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 in which Gibbs CJ, in the course of dealing with an anomaly in the tax legislation, adopted the following construction to plug the gap:

‘31. In this context it is impossible to resist the conclusion that par. (c) of s. 80B (5) was intended to have the same operation in relation to a subsidiary's loss under s. 80C as it had in relation to a company's loss under s. 80A. Section 80C (3) should therefore be read as referring in its application to s. 80B (5) (c) to the company which was to be enabled to take into account the loss. This unquestionably is what Deane and Fisher JJ. had in mind when they used the expression "where appropriate" and “mutatis mutandis” (at p322)

32. This construction is justified on the footing that it is a necessary implication to be deduced from the legislative scheme considered as a whole. It may also be justified as an application of the "mischief rule". As Lord Reid said in Gartside v. Inland Revenue Commissioners [1967] UKHL 6; (1968) AC 553, at p 612:

"It is always proper to construe an ambiguous word or phrase in light of the mischief which the provision is obviously designed to prevent, and in light of the reasonableness of the consequences which follow from giving it a particular construction." Here, the entirety of the situation to which s. 80C (3) was directed was apparent from the legislative scheme viewed as a whole, as indeed was the purpose or object of the provision itself. It is evident that there was an oversight on the part of the draftsman.’ (at p 323)

26 We will not deal in this decision with the commentary on this judgment and those of the other members of the High Court in Cooper Brookes, seen at the time as a significant shift away from the literal approach to statutory interpretation. The subject receives extensive treatment in Pearce & Geddes, Statutory Interpretation in Australia, 6th ed (2006) (Pearce & Geddes), [2.28] – [2.33] and in the subsequent case-law.

Whether sections 55 and 57 of the ADT Act are applicable

27 We do not think ss 55 and 57 can be read into the Privacy Act in the way suggested by the Tribunal below. As was submitted by the appellant, it is possible to be confident about points 2 and 3 in the list they gave, and, we also think, point 1. We are also inclined to the view that the absence of a clear statement as to the time limit tends to cause the purpose of the Privacy Act to miscarry.

28 The difficulty, as we see it, and we share this view with the appellant, concerns point 5. We are not able to state ‘with certainty’ what words Parliament would have used to overcome the drafting omission. It may have picked up, without amendment, the provisions of s 55 of the ADT Act. On the other hand, we have noted in these reasons the different approach that the Parliament took when specifying time limits under the FOI Act. The FOI Act in many ways is a companion statute to the Privacy Act. They both deal with the rights people have in relation to information held about them by government organisations. It can not, we think, be stated with certainty that, had the Parliament turned its mind to this issue, it would have adopted the general time limit contained in the ADT Act. It did not adopt that course when framing the FOI Act.

‘Reasonable Time’ Limitation

29 The appellant’s submission was that it was permissible, nonetheless, to imply a ‘reasonable time’ limitation for the bringing of Privacy Act review applications. This was also the fall-back position of the agency.

30 The Privacy Commissioner opposed reading any ‘reasonable time’ limitation into the right to apply for review of agency conduct.

31 The agency referred to cases where courts had read into statutory provisions to do with the taking of an action a time limit even though none had been specified, and were satisfied that it was intended that the action be taken ‘within a reasonable time’. For example:

- Payment by an estate agent of money received on behalf of clients into the trust account: R v Skurray (1967) WN (Pt 1) (NSW) 1

- Exercise by the Minister of the power to declare that a change made by a registered health insurer to its rules is to have no operation: HBF of Western Australia v Minister for Health, Housing and Community Services (1992) 111 ALR 1

- Dealing by the Commissioner of Taxation with objections to default tax assessments: Re Federal Commissioner of Taxation; Ex parte Australena Investments Pty Ltd (1983) 50 ALR 577.

32 The Crown Solicitor, on behalf of the Privacy Commissioner, submitted that there is doubt as to whether a reasonable time limitation can be read into rights to apply for final relief from courts or tribunals in circumstances where nothing express was said. The submissions relied on Re Teutonia Lodge [1923] VLR 533 at 541-542 per Mann J. They noted that there was some authority to the contrary – Roach v Truth and Sportsman Ltd (1938) 55 WN (NSW) 77 at 78 per Jordan CJ (with whom Davidson and Nicholas J concurred). In the latter case the question was whether a ‘reasonable time’ limit should be imposed in relation to appeals from orders made in chambers. The latter ruling dealt with the environment of interlocutory orders and a situation where the primary application was already on foot. That factor, the Crown Solicitor submitted, provided the context enabling a ‘reasonable time’ limitation to be implied. The Privacy Commissioner’s submissions recognised the inconvenience that might be caused by not having a ‘reasonable time’ limitation, and suggested that the Tribunal could exercise the power given by s 73(5)(h), referred to above, to dismiss as vexatious proceedings that would be ‘productive of serious and unjustified trouble and harassment’ (see Oceanic Sun Line Inc v Fay (1988) 165 CLR 197 at 247; Commissioner of Police v LZ [2008] NSWADTAP 22 at [13]).

33 There is, in our view, a clear necessity to have time limits apply to the commencement of litigation that puts in issue the administrative decisions or administrative conduct of agencies.

34 In our view it is appropriate to read s 55 as being subject to a ‘reasonable time’ limitation in the way that courts have done in the cases cited by the agency.

35 The Privacy Act gives precise attention to time limits within the internal review process, and the point of time at which the complainant’s right to apply for external review crystallised. It is highly unlikely in our view that the Parliament would have had in mind that at some point in the nebulous future the complaint could be revived by way of an application to the Tribunal. It is reasonable, and we consider consistent with the authorities referred to by the appellant, to read s 55 as ‘a reasonable time’. We do not see the reserve powers given to the Tribunal to dismiss applications on other grounds as being suited to the situation presented by an application filed years after the conduct placed in issue.

Calculating a Reasonable Time

36 This conclusion, we recognise, opens up another issue – what is a ‘reasonable time’. This will, we think, depend on the circumstances of the case. But given that s 53(8) speaks of a notice being given of the right to apply to the Tribunal for review in respect of the findings and the ‘proposed’ action, this would suggest that time should run from the time the applicant did, or should reasonably have, become aware of the notice.

37 In our view, using the guide provided by the FOI Act, 60 days should be regarded as the ordinary outer limit of a reasonable time. They may be extenuating circumstances which justify a longer time being allowed.

Disposal of Appeal

38 As noted, this appeal was confined to a question of law. For the reasons given, we think that the Tribunal erred. It does not follow that its ultimate decision – to dismiss the application because of delay in filing – should be reversed or varied.

39 Section 114 deals with the orders that the Appeal Panel may make in relation to question of law appeals. It provides:

‘ 114 Appeals on questions of law

(1) If an appeal under this Part is restricted to questions of law, the Appeal Panel is to determine the appeal and may make such orders as it thinks appropriate in light of its decision.

(2) The orders that may be made by the Appeal Panel on any such appeal include, but are not limited to, any of the following:

(a) an order affirming or setting aside the decision of the Tribunal (as originally constituted),

(b) an order remitting the case to be heard and decided again by the Tribunal (as originally or similarly constituted), either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel,

(c) an order made in substitution for an order made by the Tribunal.’

40 In our view had the Tribunal approached the question before it on the basis that we prefer – whether the application had been filed within a ‘reasonable time’ – it would have reached the same conclusion.

41 The Tribunal said:

‘ Should time be extended?

30. Mr Steiner put before the tribunal hospital records of AT from St George Hospital. These records covered the period between 16 April 2005 and 7 February 2006. They clearly indicate that during this time AT was suffering from serious mental health issues. There is, however, no material before the tribunal from AT or her treating doctor explaining why she did not take any action in regard to the determination that she received from the Commissioner in mid 2005. She was clearly aware of the determination and appears to have been aggrieved by it. What is of concern is that there is no explanation for the delay from February of 2006 after she was released from St George Hospital. The only evidence is that of Mr Steiner who informed the tribunal that AT first instructed him in May 2007 and as a result of his advice AT instructed him to lodge an application forthwith, which he did. This in my opinion does not explain the delay.

31. In my opinion this and the material from the hospital is not sufficient in order for the tribunal to make a finding that AT has provided a reasonable explanation for her delay. Submissions were also made to the tribunal in respect of prejudice to the respondent in the event time was extended, but in light of my findings in regard to the threshold issue of a reasonable explanation for the delay it was unnecessary for the tribunal to deal with these issue.’

42 For the avoidance of doubt, we recommend that urgent consideration be given to amending the Privacy Act or the ADT Act so as to fix a time limit for lodgement of applications for review of conduct with the Tribunal, and to allow a power to extend if there is a reasonable explanation for delay.

Order

1. Appeal as to question of law upheld. Otherwise, appeal dismissed.

2. Decision under appeal affirmed.