Department of Education and Training v ZR (GD)

[2009] NSWADTAP 29

Appeal Panel - Internal

CITATION:	Department of Education and Training v ZR (GD) [2009] NSWADTAP 29 This decision has been amended. Please see the end of the decision for a list of the amendments.
PARTIES:	APPELLANT Department of Education and Training RESPONDENT ZR
FILE NUMBER:	089063
HEARING DATES:	20 February 2009
SUBMISSIONS CLOSED:	20 February 2009
DATE OF DECISION:	11 May 2009
BEFORE:	O'Connor K - DCJ (President)
CATCHWORDS:	Interlocutory decision – Leave to appeal – Competence of application for external review – Privacy and Personal Information Protection Act 1998, s 53, s 55 – Leave granted
DECISION UNDER APPEAL:	ZR v NSW Department of Education and Training [2008] NSWADT 199
FILE NUMBER UNDER APPEAL:	073081
DATE OF DECISION UNDER APPEAL:	07/21/2008
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Privacy and Personal Information Protection Act 1998
CASES CITED:	Avilion Group Pty Ltd v Commissioner of Police [2009] NSWCA 93 Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 R v Moodie Ex p Mithen (1977) 78 ALR 219 ZR v NSW Department of Education and Training [2008] NSWADT 199
REPRESENTATION:	APPELLANT J McDonnell, solicitor, Crown Solicitor's Office RESPONDENT In person
ORDERS:	1. Leave to appeal granted. 2. Directions to be made for the disposal of the appeal proper.

1 During 2004, ZR engaged in a number of communications with High School staff and officers in the Department of Education and Training in relation to, what she saw as, deficiencies in the school’s teaching of her son. He was in his HSC year.

2 In 2005 she made, on behalf of her son, an application to the Department under the Freedom of Information Act 1989 for a copy of his student files relating to his education at the school. The Department released a number of documents enclosed in an envelope addressed to ZR’s son. ZR states that she passed the envelope unopened on to her son. Some time later she learnt that the documents released included documents containing communications made by her to the school as well as interview notes and memorandums responding to the issues she had raised. In her opinion, the internal documents did not fairly record her concerns, and were inaccurate in other ways. She states that she was also concerned that those documents had been released to her son.

3 She applied to the Department under the Privacy and Personal Information Protection Act 1998 (Privacy Act or the Act) for it to review its conduct. She divided her complaint into nine items. She provided detailed submissions as to the ways in which she considered her rights under the Privacy Act had been contravened by the Department. Most of her specific criticisms dealt with the accuracy and fairness of the information relating to her and/or with whether certain uses or disclosures were permissible under the Act. The Department concluded that it had not breached the Act. She applied to the Tribunal for a further review of the conduct. (Complaint no. 1 was not pressed.) The Tribunal agreed with the Department’s conclusions with one qualification: see ZR v NSW Department of Education and Training [2008] NSWADT 199 (21 July 2008).

4 The Tribunal found:

‘187 With the exception of the alleged breaches of section 18 of the Act, it is my view that no action on this matter is warranted. In accordance with section 55(2) of the Act I determine not to take any further action on this matter.

188 It will be apparent from the discussion provided above that it is my view that the conduct that is the subject of each of complaints No. 2 to 9 is a breach of section 18 of the Act. I note that ZR has sought an order pursuant to section 55(2) of the Act. The matter should be relisted to consider the further progress of the matter in regard to that issue.

Orders

The matter is listed for further directions at 2 pm on 21 August 2008.’

5 Section 18 is one of the Information Protection Principles, and lays down as the basic rule that an agency is prohibited from disclosing records containing personal information about an individual without the individual’s consent. The prohibition is subject to numerous exceptions and qualifications. The Tribunal in effect held that the Department had disclosed documents that contained ZR’s personal information, had done so without her consent, and none of the exceptions or qualifications applied.

6 The Department has appealed against this ruling. The appeal is made pursuant to the Privacy Act, s 56, and the Administrative Decisions Tribunal Act 1997 (ADT Act), ss 112, 113. As the proceedings are part-heard before the Tribunal, the appeal is an interlocutory one, and is subject to a leave requirement: ADT Act, s 113(2A). The Department has filed an application for leave to appeal from an interlocutory decision, and the notice of appeal. That occurred on 18 August 2008, 3 days before the proposed directions hearing. The directions hearing was suspended pending disposal of the Department’s appeal.

7 ZR has also appealed against the Tribunal’s decision (File No. 089065). That appeal has been adjourned pending the determination of this appeal.

8 For the purposes of determining whether to grant leave to appeal under s 113(2A), an Appeal Panel may be constituted by one presidential judicial member who is assigned by the President to make that determination. At the time the leave application was filed, the Tribunal’s understanding of the relevant provisions was that it was permissible, if leave was granted, for a single presidential member so assigned (typically the same member) to proceed to deal with the appeal proper, having regard to the terms of s 24A(2)(a). The Court of Appeal has ruled that this understanding is incorrect, and that a single presidential member may only deal with the leave application: Avilion Group Pty Ltd v Commissioner of Police [2009] NSWCA 93 (1 May 2009). Accordingly this decision will deal with the leave application, and a three member Appeal Panel will be constituted to deal with the appeal proper.

Leave Application

9 The Department’s main appeal point relates to jurisdiction. The Department contends that the Tribunal is only entitled to review the conduct that was put in issue by the internal review application. ZR’s internal review application, it submits, did not raise the question of whether the disclosure of documents created by ZR or referring to ZR’s concerns constituted a breach of s 18. Therefore, it was not open to the Tribunal to canvass the issue of whether the disclosure of the documents to the son constituted a breach of s 18. The issue, it contends, was raised too late. It first appears, it is submitted, in ZR’s application for review by the Tribunal.

10 If the Tribunal does have jurisdiction, contrary to its submissions, the Department contends in the alternative that the release of the documents relating to ZR’s communications and representations via the response to the FOI request did not contravene s 18. The Department refers to various exceptions.

Consideration

11 The point was not taken by the Department when the matter was before the Tribunal, despite it being legally represented at all stages of that process, which included several planning meetings as well as the hearing itself. Parties cannot consent to the exercise of jurisdiction if none exists: R v Moodie Ex p Mithen (1977) 78 ALR 219 at 225; Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 at 195.

12 I have scrutinised ZR’s application for internal review made under s 53 of the Act, and the Department’s reply to that application. The application contained nine complaints. None of them expressly referred to the disclosures of ZR’s personal information made to the son by way of the FOI release as a possible breach of s 18.

13 The first express references to this contention appear in ZR’s application to the Tribunal for external review. Applications to the Tribunal are made under s 55 of the Act. It provides relevantly:

‘(1) If a person who has made an application for internal review under section 53 is not satisfied with:

(a) the findings of the review, or

(b) the action taken by the public sector agency in relation to the application,

the person may apply to the Tribunal for a review of the conduct that was the subject of the application under section 53.’

14 The question, therefore, is whether the conduct of disclosing information about ZR to the son by way of the FOI release was ‘conduct … the subject of the application under section 53’.

15 Given the absence of any express reference to the question in the s 53 application, the principal objection is clearly arguable. If sustained, the Tribunal is without jurisdiction. In these circumstances, it is desirable that leave be granted. Accordingly, I grant leave, and a full Appeal Panel will be constituted to deal with the appeal proper.

13/05/2009 - 's 24(2)(a)' should read 's 24A(2)(a)' - Paragraph(s) paragraph 8