AYU v NSW Office of the Children's Guardian

[2014] NSWCATAD 9

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

APV and APW and Department of Family and Community Services [2014] NSWCATAD 9

Hearing dates:

On the papers

Decision date:

10 February 2014

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Mrs N Isenberg, Senior Member

Decision:

The Respondent's application to dismiss the Applicants' application for review is dismissed.

Orders:

1. The parties are to file an agreed timetable for the filing and serving of further evidence and submissions in the substantive matter, or consent to mediation, or both, within 14 days.

2. Liberty to restore.

Catchwords:

Jurisdiction - privacy - internal review - correct agency

Legislation Cited:

Housing Act 2001
Privacy and Personal Information Protection Act 1998
Public Sector Employment and Management Act 2002

Cases Cited:

GA v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 38
VZ v University of Newcastle [2008] NSWADT 178

Category:

Interlocutory applications

Parties:

APV (First Applicant)
APW (Second Applicant)
Department of Family and Community Services (Respondent)

Representation:

In person (First and Second Applicants)
K Sato, Crown Solicitor's Office (Respondent)

File Number(s):

133076

reasons for decision

Background

1. On 7 October 2009, APV and APW, the Applicants, acquired the leasehold of a property in The Rocks from the NSW Land and Housing Corporation ("LHC").

1. The Applicants complain under the Privacy and Personal Information Protection Act 1998 ("PPIP Act") that the Respondent, the Department of Family and Community Services ("FACS") breached their privacy. The Applicants' complaint arose from their solicitor's dealings with the solicitor who acted for LHC in the transaction, Mr Hale. Mr Hale was an employee of Housing NSW, which is now a part of FACS.

1. The Respondent denied that it engaged in conduct in breach of the PPIP Act. The complaint was the subject of an internal review dated 17 December 2012. That application named FACS as the agency the subject of the complaint.

1. Dissatisfied with the internal review, the Applicants seek review by the Tribunal under s.55 of the PPIP Act.

1. The Respondent now claims that the application for review is misconceived as it names the incorrect Respondent and that the Tribunal therefore has no jurisdiction. The Respondent submitted that the purported "internal review" conducted by FACS was not an internal review for the purposes of s.53(1), because it was the wrong agency to conduct the review.

1. The Respondent asks the Tribunal to dismiss the Applicants' application for review. This decision therefore relates to the question of the correct Respondent and the Tribunal's jurisdiction.

CONSIDERATION

1. Under s.3(1) of the PPIP Act, the definition of a "public sector agency" includes "a government department" and a "statutory body representing the Crown". A person who is aggrieved by the conduct of a public sector agency is entitled to review of that conduct under s.53(1) and (3) PPIP Act. The internal review is to be conducted "by public sector agency concerned": s.53(2) PPIP Act. The Respondent asserts that this necessarily refers to the agency whose conduct gave rise to the grievance. This submission, it seems to me, does not assist; on its face it is accurate, but overly simplistic. An agency, for the most part, acts through its officers and it is that conduct which is to be considered. I observe that in the internal review the reviewer noted that the Applicants' privacy grievance arises almost solely from the correspondence between Mr Hale and their solicitor. The question of which agency is the proper Respondent to the proceedings is answered by determining to which agency Mr Hale's conduct is attributable.

1. The Respondent made some helpful submissions as to the administrative arrangements between some government Departments, which are essentially reproduced below.

1. The LHC is a body corporate which, for the purposes of any Act, is a statutory body representing the Crown: s.6(1) and (4) of the Housing Act 2001 ("Housing Act"). Its affairs are to be managed by the Director General and, as a statutory corporation, it cannot employ staff: ss.6(2) and 7(3) of the Housing Act. Section 6(3) provides that any act, matter or thing done in the name of, or on behalf of, the Corporation by the Director-General, or with the authority of the Director-General, is taken to have been done by the Corporation. The Director-General is defined in s.3 to mean "the Director-General of the Department" and the "Department" is defined to mean "the Department of Human Services".

1. From 3 April 2011, the Department of Human Services was renamed FACS: cl.34(1) of the Public Sector Employment (Departments) Order 2011 ("Order"). However, the group of staff of Housing NSW who were responsible for performing asset management functions was transferred from Housing NSW to the Department of Finance and Services ("DFS"): cl.33(1). Practically speaking, the Order had the effect of splitting the operations of Housing NSW so that its asset management functions are now administered by DFS through the LHC, with the remaining functions being undertaken by Housing NSW as part of FACS.

1. Despite the Order, Housing NSW has continued to provide conveyancing assistance to the LHC. This occurred pursuant to the Director-General's delegation dated 24 September 2009 under which she delegated all her functions on behalf of the LHC under the Housing Act to the Chief Executive of Housing NSW.

1. Where statutory corporations are concerned, s.4J of the Public Sector Employment and Management Act 2002 provides as follows:

Any Division of the Government Service in which staff are employed by the Government of New South Wales under this Chapter to enable a statutory corporation to exercise its functions is, for the purposes of the Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002, taken to be part of the statutory corporation.

1. The Respondent submitted that the effect of this is that Mr Hale, as a member of staff of FACS employed to enable the LHC to exercise its functions, is taken to be part of the LHC for the purposes of the PPIP Act, and consequently it is the LHC (now DFS) that was required to perform the internal review under s.53(3) as the "public sector agency concerned". I do not agree with this interpretation. To adopt this approach would have the result that every government lawyer acting for a government agency would, for the purposes of the PPIP Act, be regarded as employed to enable the agency to exercise its functions. This is clearly not the case.

1. The Respondent did not dispute that Mr Hale was at all relevant times, an employee of Housing NSW, which is now a part of FACS. The Respondent clearly submitted that while the asset management functions formerly undertaken by Housing NSW are now administered by DFS through the LHC, the remaining functions are undertaken by Housing NSW as part of FACS. Presumably, as Mr Hale is part of FACS, the "remaining functions" include conveyancing, and perhaps even broader legal functions, were also transferred to FACS. Further, as the Respondent pointed out, pursuant to the Director-General's delegation dated 24 September 2009 all her functions on behalf of the LHC under the Housing Act were delegated to the Chief Executive of Housing NSW, which is now a division of FACS. While it is arguable that the DFS had effectively engaged FACS as its agent and hence retained ultimate responsibility for the conduct of its agent and its staff, to adopt this view would ignore the effect of the Order.

1. I have therefore come to the view that the internal review was properly conducted, and the Applicants have a right to apply for review by the Tribunal: s.53 PPIP Act.

1. The Applicants had observed that the Respondent fully considered the jurisdictional issues at the internal review stage and formed the view that it was the appropriate agency to conduct the internal review. The Applicants submitted that it is not open to the Respondent to now change its position after both it and the Applicants have proceeded on the basis that the Respondent had accepted that it was the appropriate agency for considering, and reviewing, the Applicants' complaint. I agree. Even if I were wrong in my conclusion that the internal review was appropriately undertaken, the Respondent could refer me to no authorities to support its contention that the Tribunal had no jurisdiction where an application for internal review had been made to, and conducted by, the wrong agency. The authorities to which it referred deal with jurisdiction in other contexts, including relevantly where an internal review application has not been made at all: VZ v University of Newcastle [2008] NSWADT 178 ("VZ") or in the absence of a competent application for internal review: GA v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 38 ("GA"). They are largely unhelpful.

DECISION

1. The Respondent's application to dismiss the Applicants' application for review is dismissed.

ORDERS

1. The parties are to file an agreed timetable for the filing and serving of further evidence and submissions in the substantive matter, or consent to mediation, or both, within 14 days.

2. Liberty to restore.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 10 February 2014