BPW v Roads and Maritime Services

[2015] NSWCATAD 94

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BPW v Roads and Maritime Services [2015] NSWCATAD 94
Hearing dates:	21 April 2015
Decision date:	12 May 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Kinross, Senior Member
Decision:	The applicant’s application for an extension of time is refused.
Catchwords:	PRIVACY - jurisdiction; extension of time
Legislation Cited:	Privacy and Personal Information Protection Act 1998 Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Rules 2014 Road Transport Act 2013
Category:	Principal judgment
Parties:	BPW (Applicant) Roads and Maritime Services (Respondent)
Representation:	Counsel: M Sullivan (Respondent)   Solicitors: Marrickville Legal Centre (Applicant) L Brignull, Roads and Maritime Services (Respondent)
File Number(s):	1410688

Introduction

1. BPW seeks the removal of a suspension period from his driver’s licence record. He has made an application to NCAT for administrative review under the Privacy and Personal Information Protection Act 1998 (PPIPA). This decision deals with an extension of time application and submissions concerning jurisdiction made in that context.

Background

2. Roads and Maritime Services (RMS) exercised its discretion under s40 of the Road Transport Act 2013 to suspend BPW’s driver’s licence between 4 June and 4 September 2014. RMS later decided to lift the suspension but only from 20 June 2014, the date the State Debt Recovery Office (SDRO) advised it that BPW’s offence was to be challenged in court ([1.8] resp sub). It is a continuing grievance for BPW that RMS did not lift the 4-19 June 2014 suspension, despite the related traffic offence and demerit points being removed from BPW’s driving record. BPW is currently before a local court charged with the offence of driving while suspended on 6 June 2014 ([57] app sub).

Jurisdiction

3. Application for administrative review by NCAT of conduct under PPIPA can be made only if a s53 application for internal review has been made. (s55 PPIPA) The limitation date for administrative review applications under s55 of PPIPA contained in regulation 24(4) of Civil and Administrative Tribunal Rules 2014 is contingent upon a s53 application for internal review having been made. Under s41 of the Civil and Administrative Tribunal Act 2013 the Tribunal may extend the period of time to lodge an application for administrative review.

4. The respondent has contended that the applicant is not entitled to make an application under s55 of PPIPA because no internal review was sought and on that basis no extension of time should be granted. ([2.6]-[2.17]) The applicant contends that Marrickville Legal Centre letters dated 19 June and 28 November 2014 to RMS are applications for internal review.

5. Section 15 PPIPA requires an agency to make appropriate amendments to ensure personal information is accurate, relevant, up to date, complete and not misleading. Nothing in PPIPA empowers the Tribunal to remake, correct, amend or quash an agency decision made under a statutory decision making power, prior to directing an agency to remove the record of decision from the public record pursuant to s15 PPIPA.

Letter dated 19 June 2014

6. The letter dated 19 June 2014 to RMS is on its face not an application for internal review. The second paragraph states that BPW ‘contends that his NSW Driver licence has been suspended in error’, a reference to the full suspension period 4 June to 4 September 2014. The remedy sought was the ‘immediate reinstatement of his NSW licence’. On SDRO advice dated 19 June 2014 to do so, RMS removed the speeding offence and related demerit points from BPW’s licence record on 20 June 2014. RMS then made a decision to lift the suspension from 20 June 2014, thus satisfying the request to immediately reinstate the licence. (RMS letter to BPW dated 20 June 2014). After making the decision to lift the suspension, RMS removed the corresponding reference to suspension from BPW’s licence record. Thus, BPW’s request at the end of the letter for the deletion of all reference of suspension from the licence record was only partially granted.

7. Any removal of reference to the 4-19 June 2014 suspension from the licence record can only occur if RMS first makes a decision to retrospectively lift or quash the suspension. For this reason the letter dated 19 June 2014 can only be construed as a request by BPW to RMS to make a different decision about lifting the suspension. The alternative would be to treat it as an application to amend personal information under PPIPA so that the record no longer reflected the agency decision.

Letter dated 28 November 2014

8. The applicant contends (app subs [28]) that the letter dated 28 November 2014 is in substance and form an application for internal review. At [27] of the applicant’s submissions it is contended that the letter conforms to the form requirements set out in s53(3) of PPIPA. While this may be so, a deal more is required- the application must conform to the requirements of s53 as a whole. I am not satisfied that the letter of 28 November 2014 satisfies the requirements of s53(1). To do so, the letter must contain an allegation of a contravention listed in s52.

9. While the 28 November 2014 letter asks RMS to ‘erase any mention of the licence suspension from BPW’s driving record’, which on its face might be broadly construed as a request for an alteration of personal information, there is no allegation that the information is inaccurate, irrelevant, up to date, complete or misleading. (ss15, 52 PPIPA) Rather, the submission contained in the letter is that the suspension would not have occurred but for administrative delay by SDRO i.e. an acknowledgement of the fact of the suspension. This accords with the allegation contained in the letter dated 19 June 2014 that the licence was suspended in error. The driving record as it stands appears to accurately reflect RMS’s decision to prospectively lift the suspension (20 June & 11 July 2014 letters) but not retrospectively.

10. As for the 19 June 2014 letter, RMS cannot accede to a request to alter the personal information unless it first makes a decision to lift the suspension, or a court quashes the decision or, if administratively reviewable, a review by the relevant body. Similarly, the 28 November 2014 letter can only be construed as a request for RMS to make a different decision about the lifting of the remaining suspension period, a necessary pre-condition to any alteration of the suspension record.

11. Nothing in Information Protection Principle 15 dealing with the alteration of personal information compels an agency to exercise a decision making power or change a decision to enable the amendment of a public record to reflect an applicant’s wishes. IPP 15 only compels an agency to make appropriate amendments to ensure that personal information is accurate and relevant, up to date, complete and not misleading.

12. Nothing in PPIPA empowers the Tribunal to quash the 4-19 June 2014 suspension period, as a necessary pre-condition to the making the order to remove reference to it from the record as sought by the applicant.

13. For these reasons, I am satisfied the letter can only be construed as a request for RMS to amend its decision on the suspension and then to subsequently amend the licence record to reflect the decision, and not a s53 application for internal review.

14. I reject the respondent’s submissions in [2.7]-[2.13] that an applicant must comply with agency requirements in addition to the statutory requirements. It is not possible for an agency to fetter the applicant’s statutory rights for the sake of its own convenience. The legislation does not empower the agency to do so.

15. There being no competent s53 application for internal review, no entitlement accrues to the applicant for an administrative review by the Tribunal under PIPPA. The applicant asserts at [33] of his submissions that if the Tribunal considers the internal review requirements have not been satisfied, the Tribunal may deal with the matter under s55 of the Administrative Decisions Review Act 1997 (ADR Act). There are no accompanying submissions to assist the Tribunal on that point.

16. Section 55(4) of the ADR Act provides that the Tribunal may deal with an application for administrative review even though the applicant has not duly applied for an internal review if the Tribunal is satisfied of one of two conditions.

17. I satisfied that neither condition is met in this case. The first condition concerns the making of late applications for internal review. This condition cannot apply if no competent application for internal review was made. The second condition requires that an administratively reviewable decision had been made. There being no competent internal review application, I am not satisfied that there is a reviewable decision under PPIPA. I am not satisfied that the decision set out in the RMS letter dated 11 July 2014 is a reviewable decision made under PPIPA. This is because I consider the decision contained in the 11 July 2014 simply confirms that RMS was not prepared to change its substantive decision concerning the lifting of the 4-19 June suspension and consequently it was not prepared to change the driver’s record. Such a decision is not reviewable under PPIPA.

Order

18. The application for an extension of time to file the application is not granted. The application for administrative review is dismissed.

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: 12 May 2015