CRE v Blacktown City Council - [2017] NSWCATAD 285

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CRE v Blacktown City Council [2017] NSWCATAD 285
Hearing dates: 8 May 2017
Date of orders: 19 October 2017
Decision date: 19 October 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: DAC Robertson, Senior Member
Decision:
The Tribunal decides, pursuant to s55(2) of the Privacy and Personal Information Protection Act 1998 (NSW), to take no action in this matter

Catchwords: ADMINISTRATIVE REVIEW – Privacy and Personal Information Protection Act – disclosure of contact information to principal certifying authority – whether internal review could be conducted by consultant retained for that purpose – allegations of bias and partiality on part of Council employees – whether practicable for review to be conducted by an employee or officer of the Council.
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Environmental Planning and Assessment Regulations 2000
Government Information (Public Access) Act 2009
Health Records and Information Privacy Act 2002
Privacy and Personal Information Protection Act 1998
Environmental Planning & Assessment Act 1979
Government Information (Public Access)
Health Records and Information Privacy Act 2002
Cases Cited: AQK v Commissioner of Police, NSW Police Force [2014] NSWCATAD 55
BXK v Western Sydney University [2016] NSWCATAD 235
CNC v NSW Police Force [2017] NSWCATAD 95
HWE Mining Pty Ltd v Robertson [2015] WACA 26
KO & KP v Commissioner of Police, NSW Police (GD) [2005] NSWADTAP 56
NATB & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCR 506; [2003] FCAFC 292.
Robertson v HWE Mining Pty Ltd [2014] WASC 1
Category: Principal judgment
Parties: CRE (Applicant)
Blacktown City Council (Respondent)
Privacy Commissioner (Interested Party)
Representation: Solicitors:
Applicant in person
Sparke Helmore (Respondent)
Privacy Commissioner (Interested Party)

File Number(s): 2016/00378251
Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant and the name of any other person that would identify the name of the applicant is not to be published or broadcast without the leave of the Tribunal.

REASONS FOR DECISION

This is an application pursuant to s55 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) for review under the Administrative Decisions Review Act 1997 of the conduct of the Blacktown City Council (the Council).
The PPIP Act obliges public sector agencies to collect, store, use, and disclose personal information in accordance with certain principles called Information Protection Principles (IPPs). These principles are set out in Division 1 of Part 2 of the PPIP Act, ss 8-19.
Pursuant to s53 of the PPIP Act a person may apply to a public sector agency for the review of any conduct said to be in breach of an IPP. If a person who has sought internal review of the conduct of an agency is not satisfied with the internal review decision, he or she may apply to the Tribunal for administrative review of the “conduct that was the subject of the application under section 53” pursuant to s55 of the PPIP…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWCATAD 285
Decision Date: 19 October 2017

CaseChat Overview and Summary

The case of CRE v Blacktown City Council involved a dispute over the disclosure of contact information to a principal certifying authority under the Privacy and Personal Information Protection Act 1998 (NSW). The Central Review Entity (CRE) sought an internal review of the Council's decision to disclose the contact information. The Central Review Tribunal was tasked with determining whether the internal review could be conducted by a consultant retained for that purpose, and whether it was practicable for the review to be conducted by an employee or officer of the Council, given allegations of bias and partiality on the part of certain Council employees.

The central legal issues before the Tribunal were whether the internal review could be conducted by a consultant retained for that purpose, and if it was practicable for the review to be conducted by an employee or officer of the Council given the allegations of bias and partiality. The Tribunal had to consider the statutory provisions of the Privacy and Personal Information Protection Act and the principles of natural justice, particularly the rule against bias.

The Tribunal found that the internal review could be conducted by a consultant retained for that purpose, as there was no statutory prohibition against such a review being conducted in this manner. However, the Tribunal also found that it was not practicable for the review to be conducted by an employee or officer of the Council, given the allegations of bias and partiality. The Tribunal held that the allegations of bias and partiality were sufficiently serious to undermine the perceived impartiality of the review process, and that it was therefore not practicable for the review to be conducted by an employee or officer of the Council. The Tribunal concluded that the review should be conducted by an independent person, such as a consultant, to ensure the integrity of the review process.

The Tribunal decided, pursuant to s55(2) of the Privacy and Personal Information Protection Act 1998 (NSW), to take no action in this matter.

Orders

Orders of the court

The Tribunal decides, pursuant to s55(2) of the Privacy and Personal Information Protection Act 1998 (NSW), to take no action in this matter

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	CRE v Blacktown City Council [2017] NSWCATAD 285
Hearing dates:	8 May 2017
Date of orders:	19 October 2017
Decision date:	19 October 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	DAC Robertson, Senior Member
Decision:	The Tribunal decides, pursuant to s55(2) of the Privacy and Personal Information Protection Act 1998 (NSW), to take no action in this matter
Catchwords:	ADMINISTRATIVE REVIEW – Privacy and Personal Information Protection Act – disclosure of contact information to principal certifying authority – whether internal review could be conducted by consultant retained for that purpose – allegations of bias and partiality on part of Council employees – whether practicable for review to be conducted by an employee or officer of the Council.
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Environmental Planning and Assessment Regulations 2000 Government Information (Public Access) Act 2009 Health Records and Information Privacy Act 2002 Privacy and Personal Information Protection Act 1998 Environmental Planning & Assessment Act 1979 Government Information (Public Access) Health Records and Information Privacy Act 2002
Cases Cited:	AQK v Commissioner of Police, NSW Police Force [2014] NSWCATAD 55 BXK v Western Sydney University [2016] NSWCATAD 235 CNC v NSW Police Force [2017] NSWCATAD 95 HWE Mining Pty Ltd v Robertson [2015] WACA 26 KO & KP v Commissioner of Police, NSW Police (GD) [2005] NSWADTAP 56 NATB & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCR 506; [2003] FCAFC 292. Robertson v HWE Mining Pty Ltd [2014] WASC 1
Category:	Principal judgment
Parties:	CRE (Applicant) Blacktown City Council (Respondent) Privacy Commissioner (Interested Party)
Representation:	Solicitors: Applicant in person Sparke Helmore (Respondent) Privacy Commissioner (Interested Party)
File Number(s):	2016/00378251
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant and the name of any other person that would identify the name of the applicant is not to be published or broadcast without the leave of the Tribunal.