EJE v Department of Communities and Justice

[2021] NSWCATAD 96

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EJE v Department of Communities and Justice [2021] NSWCATAD 96

Hearing dates:

On the papers

Date of orders:

21 April 2021

Decision date:

21 April 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

A Christie, Senior Member

Decision:

(1)   The Applicant’s application in respect of the allegation that the Respondent allowed another individual to falsely use the Applicant’s identity before the Port Macquarie Local Court and Wauchope Local Court is dismissed pursuant to s55(1)(b) CAT Act for being misconceived or lacking in substance (for want of jurisdiction) by the operation of s6 of the PPIP Act.

(2) As regards the Applicant’s application regarding the Respondent holding inaccurate personal information of the Applicant, pursuant to section 55(2) of the Privacy and Personal Information Protection Act 1998, no further action is to be taken.

Catchwords:

ADMINISTRATIVE LAW – privacy – alleged misuse of and holding of inaccurate personal and health information - HPP 9 – s6 PPIP Act and judicial functions – absence of evidence of holding the relevant information and breaches

Legislation Cited:

Administrative Decisions Review Act 1997

Administrative Decisions Tribunal Act 1997

Children and Young Persons (Care and Protection) Act 1998

Civil and Administrative Tribunal Act 2013

Health Records and Information Privacy Act 2002

Privacy and Personal Information Protection Act 1998

State Records Act 1998

Cases Cited:

AEC v Commissioner of Police (NSW) [2013] NSWADTAP 30

Alchin v Rail Corporation NSW [2012] NSWADT 142

ALZ v WorkCover NSW [2015] NSWCATAP 138

BCR v Consumer, Trader & Tenancy Tribunal [2014] NSWCATAD 79

CEU v University of Technology Sydney [2018] NSWCATAD 13

Department of Education and Training v GA (No 3) [2004] NSWADTAP 50

Department of Education and Training v ZR (No 2) [2009] NSWADTAP 44

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

DSG v Department of Education [2019] NSWCATAD 182

DTN v Commissioner of Police [2020] NSWCATAP 73

Housing NSW v Hamilton [2015] NSWCATAP 136

JD v Department of Health (GD) [2005] NSWADTAP 44

JD v Director General, NSW Department of Health (No 2) [2004] NSWADT 227

LG v Attorney Generals Department of NSW [2009] NSWADT 141

Long v Metroni Pty Ltd [2019] NSWCATAP 196

New South Wales Crime Commission v Ollis [2006] NSWCA 76

Payne v Haski [2018] NSWCATAD 115

PN v Department of Education and Training [2010] NSWADTAP 59

Saisanavong v Commissioner of Police [2020] NSWCATAD 332

Skiba v Department of Communities and Justice [2020] NSWCATAD 199

State Electricity Commission of Victoria v Rabel [1998] 1 VR 102

Vice-Chancellor Macquarie University v FM (No 2) [2004] NSWADTAP 37

Category:

Principal judgment

Parties:

EJE (Applicant)
Department of Communities and Justice (Respondent)

Representation:

Applicant (Self-Represented)
Respondent (Self-Represented)

File Number(s):

2020/00168164

Publication restriction:

An order is made under section 64(1) of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure of the name of the Applicant.

REASONS FOR DECISION

1. On 17 March 2020 the Respondent received the Applicant's request for an internal review (IR Request) pursuant to s53 of the Privacy and Personal Information Protection Act 1998 (PPIP Act) and s21 of the Health Records and Information Privacy Act 2002 (HRIP Act).

2. After the lapsing of 60 days from the receipt by the Respondent of the IR Request the Applicant filed a request for administrative review by the Tribunal on 11 June 2020 pursuant to Part 5 of the PPIP Act (AR Application).

3. Since the filing of the AR Application the Respondent concluded its internal review and, on 8 July 2020, provided its findings to the Applicant (IR Decision).

4. Pursuant to the consent orders of Senior Member Lonsdale on 3 November 2020 the Tribunal dispensed with a hearing in the matter pursuant to s50(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act).

5. As noted in the 3 November 2020 orders of the Tribunal the parties agreed that, for the purposes of these proceedings on the AR Application, the conduct of concern to be reviewed is that set out in (i) the IR Request and (ii) paragraphs 6 to 13 (inclusive) and, insofar as they relate to accuracy, paragraphs 40 to 63 (inclusive) of the IR Decision (collectively Conduct of Concern).

Background

6. In the IR Request the Applicant stated the following as regards the Conduct of Concern, in summary:

1. that someone falsely created identities related to the Applicant and that these have been used fraudulently by the Respondent in relation to two proceedings in and attendances at the Port Macquarie and Wauchope Local Courts; and

2. personal information held by the Respondent that the Applicant was incarcerated, that the Applicant's children were removed from the Applicant's care and the Applicant’s health information regarding their mental health status are inaccurate.

7. The Applicant completed Item 10 of the Respondent's Privacy Internal Review Application Form (i.e. the IR Request) indicating that each of the “collection of personal/health information, security or storage of personal/health information, refusal to provide access to or disclose information about personal/health information, accuracy of personal/health information, uses of personal/health information and disclosure of personal/health information” were the alleged breaches of the PPIP Act or HRIP Act relating to by the Conduct of Concern.

8. The internal reviewer of the Respondent noted in the IR Decision that the Department of Family and Community Services merged with the Department of Justice to form the Department of Communities and Justice on 1 July 2019 and that the reviewer understood the references of the Applicant to "Family and Community Services" to be references to the child protection functions of the Respondent.

9. The Respondent’s internal reviewer stated in the IR Decision that it understood the Applicant is alleging, in relation to the IR Request, that the Applicant’s:

1. personal information was collected by the Respondent from someone other than the Applicant in contravention of s9 PPIP Act/Information Privacy Principle (IPP) 2. Specifically, an alleged false court appearance using the Applicant’s identity in relation to which the Applicant provided five documents that relate to criminal proceedings against the Applicant in the Local Court at Wauchope and proceedings for an apprehended personal violence order application in the Local Court at Port Macquarie in support of this allegation (collectively Local Court Collections);

2. personal information was used by the Respondent for a purpose other than that for which it was collected in contravention of s17 PPIP Act (IPP 10). Specifically, the Applicant alleges that their identity (personal information) was used to (falsely) record the Applicant’s appearances at the courts noted in (1) above;

3. personal and/or health information held by the Respondent is inaccurate and thus in breach of s16 PPIP Act (IPP 9) and/or clause 9 of Schedule 1 HRIP Act or Health Information Privacy Principle (HPP) 9. Specifically, the Applicant alleges that the Respondent holds the following inaccurate information about the Applicant:

1. that the Applicant has been incarcerated (Incarceration Information);

2. that the Applicant’s children have been removed from their care (Removal Information); and

3. as to the Applicant’s mental health status (MH Information).

10. No explanation was offered by the Respondent’s internal reviewer as to how they concluded as to what IPPs and HPPs (as summarised in paragraph [9] above) were allegedly breached by the Conduct of Concern. That is, how they determined which sections of the PPIP Act and HRIP Act are relevant to the allegations made by the Applicant in the IR Request.

11. The Respondent’s internal reviewer concluded in the IR Decision, in summary, as follows:

[11]   In relation to your allegation of identity fraud, as has been previously advised to you the [Respondent] does not investigate allegations of identity fraud. You may wish to contact your local police in relation to reporting an allegation of fraud.

[12]   In relation to your allegation that you found a false name you have never used on police documentation, the [Respondent] does not investigate allegations made in relation to NSW Police. You may wish to direct that complaint to NSW Police.

[13]   As regards the Local Court proceedings at Wauchope and Port Macquarie, the Respondent's investigations found:

a.   … The file indicates that you [name withheld] appeared in person represented by a legal representative named 'Culf' on 14 March 2013.

b.   … The file indicates that you [name withheld] appeared in person represented by a legal representative named 'Dampney' on 25 February 2013 and 2 July 2013.

[27]   Based on the court records made available to [the Respondent] in the course of this investigation, it is clear that the personal information collected by the [Respondent] was collected from your authorised legal representatives cited in the court records as 'Culf' and 'Dampney'.

…

[33]   Your personal appearance (your name) was collected for the purpose of identifying you as the defendant and to enable the Local Court to make a determination in relation to the matters involving you.

[35]   The recording of your appearance is necessary to enable the court to accurately record the progress of the proceedings and to ensure that any determination is made fairly. I consider the recording of your appearance is a use of your personal information for a purpose for which your personal information collected.

[37]   Your internal review application [IR Request] also raises concerns with the accuracy with your personal and/or health information held by the Respondent. Specifically, you allege that the [Respondent] holds [noted information] about you which is inaccurate: …

[41]   I conducted a search of OIMS in your various names. I was unable to locate any record of information relating to you [as regards the information that the Applicant had been incarcerated].

[42]   Accordingly, I do not find that the [Respondent] holds personal information that you have been incarcerated and therefore find no breach of s16 of the PPIP Act.

[44]   I was unable to locate any record of information that your children have been removed from your care [after accessing and reviewing the Child Protection Records in relation to the Applicant's children].

[45]   Accordingly, I do not find that the [Respondent] holds personal information that your children have removed from your care and therefore find no breach of s16 of the PPIP Act.

[47]   I was able to locate some records and information which pertain to your mental health.

[56]   Upon reviewing the information, I consider that the information reflects an historical account of the information received. I also consider that the retention of these records is important for a number of reasons, including transparency and accountability for the [Respondent] in the way it carries out its functions but also having regard to the requirements of the State Records Act 1998. In addition, should there be a need for the [Respondent] to investigate further allegations of risk of harm to the same children, there will be a need to ensure the history provided in relation to those children is kept in a precise manner it was reported.

[62]   I am satisfied that some of the information held by the [Respondent] has been collected by the [Respondent] from third parties in the course of exercising its statutory child protection functions under s245C of the Care Act. I am also satisfied that the [Respondent] has taken reasonable steps to ensure the accuracy of the information before using it.

[63]   Accordingly, I do not find a breach in relation to accuracy of information in relation to your mental health status both at the time it was collected or at the time it was used.

12. In relation to paragraphs [62] and [63] of the IR Decision, the Respondent's internal reviewer does not specify in the IR Decision if there was any recent "use" of the Applicant's personal information (i.e. apart from the original collection) or what steps were actually taken to check its accuracy in such a case.

13. The Applicant filed several sets of written submissions and supporting documents and a response to the Respondent’s submissions between 12 June 2020 and 27 January 2021 and the Respondent filed its written submissions and supporting documents on 18 January 2021 (RS).

14. As per the Tribunal’s 3 November 2020 orders and the jurisdiction of the Tribunal (see paragraphs [16] to [23] below), the Tribunal’s review in respect of any alleged breaches of the IPPs or HPPs by the Respondent has been limited to its review of the Conduct of Concern.

Issues for determination

15. The issues in dispute to be considered by the Tribunal are therefore whether:

1. pursuant to s6 PPIP Act the Tribunal has jurisdiction under s55(1)(b) CAT Act in respect of the Local Court Collections; and

2. there are any breaches of the IPPs and/or HPPs in relation to, in summary, the following Conduct of Concern:

1. if not dismissed under (1), the Local Court Collections; and/or

2. the Respondent holding the following inaccurate information:

1. the Incarceration Information;

2. the Removal Information; and

3. the MH Information.

Scope of the Tribunal's review

16. Part 5 of the PPIP Act provides for the review of certain specified conduct of a public sector agency such as the Respondent. Most relevantly in this case, the conduct as set out in s52 PPIP Act is:

(1)   This Part applies to the following conduct-

(a)   the contravention by a public sector agency of an information protection principle that applies to the agency…

17. As regards any alleged breach of an HPP (ie HPP 9 in this case), s21 HRIP Act provides relevantly that:

(1)   The following conduct by a public sector agency is conduct to which Part 5 (Review of certain conduct) of the PPIP Act applies—

(a)   the contravention of a Health Privacy Principle that applies to the agency, …

(2)   For that purpose, a reference in that Part—

(a)   to personal information is taken to include health information, and

(b)   to an information protection principle is taken to include a Health Privacy Principle, and …

18. Section 53 PPIP Act, under which the Applicant made the IR Request, most relevantly provides:

(1)   A person ("the applicant") who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct…

(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 an administrative review of the conduct concerned.

(7)   Following the completion of the review, the public sector agency whose conduct was the subject of the application may do any one or more of the following-- 

(a)   take no further action on the matter, 

(b)   make a formal apology to the applicant, 

(c)   take such remedial action as it thinks appropriate (eg the payment of monetary compensation to the applicant), 

(d)   provide undertakings that the conduct will not occur again, 

(e)   implement administrative measures to ensure that the conduct will not occur again…

19. Under s53(6) PPIP Act the Applicant (in this case) is entitled to make an application pursuant to s55 PPIP Act for administrative review of the conduct of concern if the requested internal review is not completed by the Respondent within 60 days of the date of receipt of the Applicant’s internal review application (the IR Request in this case).

20. Under s55(1) PPIP Act a person who is dissatisfied with the findings of or actions proposed by an internal review (in this case the IR Decision) may request the Tribunal to review that agency's conduct which was the subject of the internal review. Sections 55(2) and (3) PPIP Act provide the actions and orders the Tribunal may make once the Tribunal has reviewed the agency’s conduct under s55 PPIP Act:

(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 Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the conduct that was the subject of the application under section 53.

(2)   On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders-- 

(a)   subject to subsections (4) and (4A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct,

(b)   an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice, 

(c)   an order requiring the performance of an information protection principle or a privacy code of practice, 

(d)   an order requiring personal information that has been disclosed to be corrected by the public sector agency, 

(e)   an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant, 

(f)   an order requiring the public sector agency not to disclose personal information contained in a public register, 

(g)   such ancillary orders as the Tribunal thinks appropriate. 

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

21. As found by the Tribunal in Payne v Haski [2018] NSWCATAD 115 at [30], the jurisdiction of the Tribunal is specified in Part 3 of the CAT Act and s28(1) CAT Act provides that:

The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under [the CAT Act] or any other legislation.

22. Several decisions of the Appeal Panel have set out of some fundamental principles that govern the scope of a review of an agency's conduct under the PPIP Act by this Tribunal. In an application for administrative review of an agency’s conduct under s55 PPIP Act (i.e. the AR Application in this case), the Tribunal is limited to reviewing the scope of the conduct which is the subject of the original application for the internal review (i.e. in this case the Conduct of Concern). The Tribunal does not have jurisdiction to review alleged conduct in breach of an IPP or HPP that was not the subject of the application for internal review to the agency: Department of Education and Training v GA (No 3) [2004] NSWADTAP 50 (GA) at [7]; Department of Education and Training v ZR (No 2) [2009] NSWADTAP 44 at [17] (also see CEU v University of Technology Sydney [2018] NSWCATAD 13 at [76]).

23. The purpose of an internal review by an agency (i.e. the Respondent in this case) is to determine whether any of the alleged conduct by that agency raised in the request for internal review (i.e. the Conduct of Concern) amounted to a contravention of one or more of the IPPs or HPPs or any applicable privacy codes: see GA.

24. The Tribunal held in DSG v Department of Education [2019] NSWCATAD 182, at [73], that:

When reviewing conduct that is the subject of an internal review under the PPIP Act, the Tribunal is exercising its administrative review jurisdiction.

25. In the case of an administrative review the Tribunal is not reviewing the IR Decision (in this case) but the original conduct of concern of the agency (in this case the Conduct of Concern) which the Applicant complained about in the IR Request (in this case): see AEC v Commissioner of Police (NSW) [2013] NSWADTAP 30 at [34].

25. Section 63 Administrative Decisions Review Act 1997 provides that, in determining an application for review, the Tribunal is to make the correct and preferable decision having regard to the material before it and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the Respondent’s internal reviewer but may have regard to any relevant material before it at the time of the Tribunal’s review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

Dismissal of proceedings

27. Section 55(1) CAT Act provides (most relevantly) that the Tribunal may dismiss any proceedings:

(b)   if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, ...

(d)   if the Tribunal considers that there has been a want of prosecution of the proceedings.

28. In Alchin v Rail Corporation NSW [2012] NSWADT 142 Judicial Member Wright SC (as he then was) examined s73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1997 which wasthepredecessor provision to s55(1)(b) CAT Act (also see Long v Metroni Pty Ltd [2019] NSWCATAP 196 at [77]). As to the meaning of "misconceived" and "lacking in substance" he said, at [25]:

… With respect to a similar provision found in the Equal Opportunity Act 1984 (Vic), Ormiston JA in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at [14] said:

"misconceived" and "lacking in substance" have not, so far as I am aware, been used in this context before though each expression is commonly used by lawyers, the one connoting a misunderstanding of legal principle and the other connoting an untenable proposition of law or fact. If one may discern, in these provisions, an attempt to express the powers of tribunals in non-technical language, then "misconceived" would represent a claim which did "not disclose a cause of action" ..., whereas "lacking in substance" might be seen to represent a claim where the defendant could obtain summary judgment ...

Applicable law

29. The PPIP Act regulates the manner in which NSW Government agencies, including the Respondent, and certain other entities deal with and manage personal information. “Personal information” is defined in s4 PPIP Act as:

(1)   In this Act, "personal information" means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion. 

(2)   Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.

30. “Health information” is defined in s6 HRIP Act most relevantly as:

(a)   personal information that is information or an opinion about—

(i)   the physical or mental health or a disability (at any time) of an individual, or

(ii)   an individual’s express wishes about the future provision of health services to him or her, or

(iii)   a health service provided, or to be provided, to an individual, or …

31. Section 4(4) PPIP Act further provides (and s9 HRIP Act is in similar terms in respect of health information):

For the purposes of this Act, personal information is "held" by a public sector agency if-

(a)   the agency is in possession or control of the information, or 

(b)   the information is in the possession or control of a person employed or engaged by the agency in the course of such employment or engagement, or 

(c) the information is contained in a State record in respect of which the agency is responsible under the State Records Act 1998.

32. Section 6 PPIP Act most relevantly provides:

6   Courts, tribunals and Royal Commissions not affected

(1)   Nothing in this Act affects the manner in which a court or tribunal, or the manner in which the holder of an office relating to a court or tribunal, exercises the court’s, or the tribunal’s, judicial functions. …

(3)   In this section, judicial functions of a court or tribunal means such of the functions of the court or tribunal as relate to the hearing or determination of proceedings before it, …

33. Section 3 PPIP Act provides that in the PPIP Act the expression “function” includes a power, authority or duty.

34. Sections 8 to 19 PPIP Act set out the twelve IPPs that govern the way in which an agency (in this case the Respondent) must collect, store, access, use and disclose personal information. For the purposes of the present proceedings before the Tribunal the most potentially relevant IPPs and HPPs are:

1. s9 PPIP Act (IPP 2) relevantly provides:

A public sector agency must, in collecting personal information, collect the information directly from the individual to whom the information relates unless—

(a)   the individual has authorised collection of the information from someone else, …

2. s10 PPIP Act (IPP 3) provides:

If a public sector agency collects personal information from an individual, the agency must take such steps as are reasonable in the circumstances to ensure that, before the information is collected or as soon as practicable after collection, the individual to whom the information relates is made aware of the following—

(a)   the fact that the information is being collected,

(b)   the purposes for which the information is being collected,

(c)   the intended recipients of the information,

(d)   whether the supply of the information by the individual is required by law or is voluntary, and any consequences for the individual if the information (or any part of it) is not provided,

(e)   the existence of any right of access to, and correction of, the information,

(f)   the name and address of the agency that is collecting the information and the agency that is to hold the information.

3. s11 PPIP Act (IPP 4) relevantly provides:

If a public sector agency collects personal information from an individual, the agency must take such steps as are reasonable in the circumstances (having regard to the purposes for which the information is collected) to ensure that—

(a)   the information collected is relevant to that purpose, is not excessive, and is accurate, up to date and complete, and

(b)   the collection of the information does not intrude to an unreasonable extent on the personal affairs of the individual to whom the information relates. …

4. s12 PPIP Act (IPP 5) relevantly provides:

A public sector agency that holds personal information must ensure—

(a)   that the information is kept for no longer than is necessary for the purposes for which the information may lawfully be used, and …

(c)   that the information is protected, by taking such security safeguards as are reasonable in the circumstances, against loss, unauthorised access, use, modification or disclosure, and against all other misuse, and …

5. s16 PPIP Act (IPP 9) provides:

A public sector agency that holds personal information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading.

6. s17 PPIP Act (IPP 10) provides:

A public sector agency that holds personal information must not use the information for a purpose other than that for which it was collected unless—

(a)   the individual to whom the information relates has consented to the use of the information for that other purpose, or

(b)   the other purpose for which the information is used is directly related to the purpose for which the information was collected, or

(c)   the use of the information for that other purpose is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual to whom the information relates or of another person.

35. Clause 9 of Schedule 1 HRIP Act (HPP 9) provides, like IPP 9, that:

An organisation that holds health information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading.

36. Section 16 PPIP Act (IPP 9), being together with HPP 9 the most likely applicable in the present proceedings, was described in PN v Department of Education and Training [2010] NSWADTAP 59 at [30] as:

… the most important provision in the [PPIP] Act. [Section 16 (and IPP 9)] entrench the principle that agencies will take reasonable steps to ensure that before information held by them about individuals is used for an administrative purpose it is checked to ensure that it is appropriate to rely upon it. The agency is expected to satisfy itself that the information is relevant, accurate, up to date, complete and not misleading.

37. Having regard to the analogous provision in the HRIP Act and the analogous HPPs, in particular HPP 9, the Appeal Panel in ALZ v WorkCover NSW [2015] NSWCATAP 138 held at [89] that agencies are required to:

… fairly use the information they hold at the point they are taking actions or making decisions based on it. It is especially directed to old information and seeks to encourage care in relation to use of information collected indirectly. [emphasis added]

38. The Tribunal held in JD v Director General, NSW Department of Health (No 2) [2004] NSWADT 227 (JD) at [66] that:

… where personal information held by an agency is to be used for a purpose that is adverse to the interests of the person concerned, then section 16 of the PPIP Act [i.e. IPP 9] places a higher threshold on an agency to ensure that the information is relevant, accurate, up to date, complete and not misleading.

39. Further, the Tribunal also held in JD at [67] that reasonable steps must be determined:

…not only in the context of the purpose for which the information was to be used, but also in the context of those matters [where] the applicant alleges the information was not relevant, inaccurate, out of date, incomplete or misleading.

40. In JD v Department of Health (GD) [2005] NSWADTAP 44 (GD), the Tribunal held at [69]:

What is reasonable in the circumstances will vary with the significance of the purpose to which the information is to be put, and may be affected by the urgency of the situation. It may be that no additional steps are necessary.

The Applicant's Submissions

41. In the Applicant's submissions filed on 27 January 2021 in response to the Respondent’s submissions (ASR) the Applicant submitted, paraphrasing and in summary, that:

1. The Applicant does not consent to a court or tribunal using their personal information for a secondary purpose and there is no reason for an exemption to apply.

2. The Applicant does not accept that their personal information was reasonably used for a secondary purpose where part of their name was wrongfully used in Police, Department of Communities & Justice and Court documentation with a name being a similar name to that of the Applicant.

3. An AVPO was created using a false name of the Applicant and their address at the time and the Respondent failed to ensure the Applicant was actually the person standing before the court at Port Macquarie Courthouse.

4. The Applicant was never served with an AVPO under the Applicant’s name at any time. The NSW Courts and NSW Police breached the IPA as has the Respondent for failing to ensure my personal information was not used in a fraudulent manner.

5. Section 27(2) PPIP Act states that the IPPs do apply in connection with the exercise of the court's administrative and education functions which covers where the Respondent failed to ensure that the Applicant’s identity was checked and confirmed as is apparent on documentation or in court where the Applicant allegedly appeared as a defendant (Port Macquarie) as the Applicant did not appear.

6. The information in respect of the court appearances was not collected directly from the Applicant nor did the Applicant consent or have knowledge of their personal information being collected off someone else.

Respondent's Submissions

42. In the RS the Respondent submits, in summary, that:

1. In respect of the Applicant's allegation that another individual attended Port Macquarie Local Court using the identity of and a name similar to the Applicant in response to court proceedings initiated in that name, the conduct of the Court is not affected by the PPIP Act because they are judicial functions within the meaning s6 PPIP Act.

2. In respect of the Applicant's complaint regarding the Respondent holding inaccurate information:

1. the PPIP Act does not apply to the Incarceration Information as this information is not held by the Respondent;

2. the PPIP Act does not apply to the Removal Information as this information is not held by the Respondent; and

3. there has been no breach of s16 PPIP Act (IPP 9) and/or clause 9 of Schedule 1 of the HRIP Act (HPP 9) in relation to the MH Information as the Respondent has taken "such steps as are reasonable in the circumstances" to ensure that, having regard to the purpose for which the MH Information is proposed to be used, the information is accurate.

43. The Respondent also submitted in the RS that the correct and preferable decision of the Tribunal is to:

1. Dismiss the Applicant's application in respect of Port Macquarie Local Court Collection pursuant to s55(1)(d) of the CAT Act for want of jurisdiction by operation of s6 PPIP Act.

2. Find that, in respect of the Applicant's complaint regarding the Respondent holding inaccurate information that:

1. the PPIP Act does not apply to the Incarceration Information as Respondent does not hold it;

2. the PPIP Act does not apply to the Removal Information as the Respondent does not hold it; and

3. the Respondent took “such steps as are reasonable in the circumstances" to ensure that, having regard to the purpose for which the MH Information was proposed to be used, the MH Information was accurate so there is no breach of HPP 9.

44. At [30] of the RS the Respondent has accepted that, and I agree having considered the relevant provisions of the PPIP Act and HRIP Act, the Applicant's allegations relate to what would usually be considered the "personal information" and "health information" of the Applicant.

45. The Respondent submits that the effect of s6 PPIP Act is that it excludes from the operation of the PPIP Act the manner in which the holder of an office relating to a court or tribunal exercises its judicial functions. That is, where an officer or holder of an office of a court or tribunal engages in conduct with respect to personal or health information in the exercise of a judicial function, the PPIP Act does not apply to the manner in which those judicial functions are exercised. Further, the Respondent submits that s29(5) CAT Act provides that jurisdiction is not conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act. Thus, the Tribunal has no jurisdiction to hear this (i.e. at least the Port Macquarie Local Court Collections) part of the Applicant's AR Application.

46. The Respondent submits in the RS that, based on its searches of relevant databases including the "Offender Integrated Management System" (OIMS), the Respondent does not hold any Incarceration Information or Removal Information. That is, while this information would be considered personal information under the PPIP Act if held by the Respondent, based on the evidence and submissions of the Respondent such information was not (at the time of the searches conducted) held by the Respondent.

47. As regards the MH Information, the Respondent submits (in similar fashion to what is stated in the IR Decision) that the Respondent does hold relevant records which would be considered health information and/or personal information. However, the Respondent submits that it has taken reasonable steps to ensure the accuracy of the MH Information before using it and that the Applicant has not provided evidence as to how the information is not accurate or is incomplete or misleading. At [78] RS the Respondent submits that:

In investigating whether the information about the Applicant's mental health was accurate, the context in which the information was collected, the purpose for which it was collected and the manner and time at which the information was recorded was considered.

48. The Respondent then submits that the MH Information was used to assess and respond to the risk of significant harm report received about the Applicant's children at the time of that report and that it is not reasonable for the Respondent, as a Department, to question the accuracy of information obtained under a lawful exchange of information under Chapter 16A of the Children and Young Persons (Care and Protection) Act 1998 (Care Act).

49. The Respondent submits that MH Information held by the Respondent is a contemporaneous record of the information collected at the time it was provided to the Respondent. The MH Information received by the Respondent was taken down verbatim by an employee of the Respondent exercising child protection functions without improvements, without correcting the language used or without changing the alleged facts provided, so the information recorded is a true and accurate record of the information received under the Chapter 16A Care Act request.

50. The Respondent submitted that, even if the MH Information is later discovered or found to contain errors, the information is an accurate account of the opinion and views of the person who reported the information at the time when the records were created and subsequently provided to the Respondent in response to a lawful exchange of information under Chapter 16A Care Act. As a record reflecting contemporaneous events, if ever MH Information is found to be incorrect it would still not reveal any inaccuracies in the way the Respondent collected and used the information at that point in time.

51. The Respondent also submits that the retention of the MH Information records is important for a number of reasons, including transparency and accountability for the Respondent in the way it carries out its functions but also having regard to the requirements in the State Records Act 1998. In addition, should there be a need for the Respondent to investigate further allegations of risk of harm to the same children, there will be a need to ensure the history provided in relation to those children is kept in the precise manner it was reported.

52. In conclusion, based on the submissions and evidence noted above, the Respondent submitted that it had taken reasonable steps to ensure the accuracy of the MH Information before using it.

Consideration and Findings

53. While both the Applicant and Respondent provided detailed submissions and attached relevant documentation to support their submissions, apart from information provided in the IR Decision, no evidence in respect of the Respondent not holding the Incarceration Information and Removal Information (i.e. a statement from the officer of the Respondent who conducted the relevant searches referred to in the submissions (and the IR Decision)) was submitted by the Respondent. Also, the Applicant did not make specific submissions on or provide evidence in relation to why they believed the Respondent did hold the Incarceration Information and Removal Information or in relation to any alleged recent use of the MH Information by the Respondent and why such use was in breach of HPP 9.

Local Court Collections

54. As regards the Local Court Collections, while the Respondent limited its submissions to considering the allegations in respect of the appearance and collection in respect of the matter in the Local Court of Port Macquarie and for dismissal for “want of prosecution” under s55(1)(d) CAT Act , I have considered the Conduct of Concern itself to form my own view as to that conduct. I have considered the submissions and the law relevant to the attendances at and collections in respect of the matters both in the Local Court of Port Macquarie and the Local Court of Wauchope (i.e. the Local Court Collections) and for dismissal pursuant to s55(1) (b) CAT Act.

54. The scope of the courts’ and tribunals’ judicial functions has been considered in a number of matters. Most relevantly, the judicial functions of the former Administrative Decisions Tribunal were considered by Judicial Member Molony in LG v Attorney Generals Department of NSW [2009] NSWADT 141 (and see Skiba v Department of Communities and Justice [2020] NSWCATAD 199 at [17] – [19]). The Judicial Member considered a number of earlier decisions that had dealt with conduct of registry staff and he stated at paragraphs [24] and [26]:

24   What is encompassed within the concept of a court or tribunal’s ‘judicial functions’ has been the subject of a number of earlier decisions in relation to the PIPP Act and the Freedom of Information Act 1989. In NZ v Attorney-General's Department [2005] NSWADT 103, the President considered the term in the context of s 6 of the PIPP Act. There the conduct in issue was the release by the Registrar of a Local Court of documents filed by an applicant for an AVO to other parties. He said, at [14 -18]

"14 Section 6(1), to reiterate, provides that: `Nothing in this Act affects the manner in which a court or tribunal, or the manner in which the holder of an office relating to a court or tribunal, exercises the court's, or the tribunal's, judicial functions.' The Department referred in its submissions to the structure of courts, and in particular s 10 of the Local Courts Act which provides for the office of registrar of a local court. The Tribunal is satisfied that a Registrar of a Local Court is the holder of an office of a court.

15   … Section 6(3), to reiterate, provides relevantly that: ‘In this section, "judicial functions" of a court or tribunal means such of the functions of the court or tribunal as relate to the hearing or determination of proceedings before it...’.

16   The Tribunal agrees with the Department’s submission that the words ‘relate to’ have a broad meaning and denote a wide connection between the conduct of interest and the activity of hearing and determining proceedings ...

17   See also N (No 2) v Director General, Attorney General’s Department [2002] NSWADT 33 at [32]- [33] where I dealt with a similar question, there involving a similarly-expressed immunity from review contained in s 10 of the Freedom of Information Act 1989. In that case there was an issue as to whether communications with the Registry from professional representatives were immune from the operation of the FOI Act on the basis that they were documents held by the Registry in the exercise of functions that ‘relate to’ the hearing and determination of claims. In that instance I ruled that professional communications of this kind ‘are necessary to the efficient conduct of a claim, and fall within the scope ... of those functions that ‘relate to’ the hearing and determination of claims’ (at [31]) (appeal dismissed, [2002] NSWADTAP 41).

18   This is a stronger case. The applicant’s personal information is found in documents lodged with the Registry for use as evidence in support of her application for AVOs. The efficient performance of judicial functions depends greatly on there being a system for the receipt and organization of intended evidence in advance of the formal hearing of a matter. This system is commonly provided by a Registry under the direction of a Registrar. Decisions will frequently have to be taken by Registry officers as to the extent to which access is given to this material, ahead of hearing; or after the material has been dealt with at hearing, and has, possibly, become part of the evidence. The function of giving access to documents of that kind, and to the personal information they may contain, is one, I consider, that ‘relates to’ the exercise by the Court of its judicial functions. …

26   On further appeal to the Supreme Court in Budd v Director, Attorney Generals Department [2006] NSWSC 1267 Bell J said, at [20]:

… The Plaintiff's complaint concerned the release of information containing personal details. There is no question of the PPIP Act applying to a court or the holder of an office relating to a court exercising the court's judicial functions. Once the actions of the registry staff were found to relate to the judicial functions of the court within the meaning of the PPIP Act, that was an end to the matter. There could be no question of the Tribunal exercising jurisdiction under that Act. For these reasons, the grounds that I have identified as paragraph [14] (a) and (b) do not establish error of law in the way the Appeal Panel determined the issue.

56. As noted in BCR v Consumer, Trader & Tenancy Tribunal [2014] NSWCATAD 79, a case that involved the release of the applicant’s personal information, in error, by registry staff of the Consumer, Trader & Tenancy Tribunal:

“42.   … what is relevant is whether there were proceedings before the CTTT that required "hearing" or "determination"; and whether the function that was being exercised is related to those proceedings. …

45.   In my view, the provision of information relevant to the matter to be determined by the CTTT, to a party to the proceedings, is exercising a function relating to the judicial functions of the CTTT.

57. In the present case, the conduct under review is that of the collection and use by the Local Courts (or officers of such) of the Applicant’s personal information on and in relation to the Applicant’s attendance/appearance at those Local Courts in relation to proceedings before those Courts whether by the presiding magistrate, the registry and/or other officer of the Courts. These were proceedings before the Local Courts that required "hearing" or "determination". The collection of names and details of the parties and their representatives in attendance at those Courts for an appearance or hearing is an important feature of any adjudicated decision. In my view these activities are clearly related to those proceedings and thus part of the judicial function of those Courts. 

58. As regards the Local Court Collections, I agree with the submissions of the Respondent and I am satisfied that the taking of attendance and confirming the identities of the parties in respect of a hearing or appearance before the relevant Local Court is the exercise of a judicial function of that Court and therefore, pursuant to s6 PPIP Act, the PPIP Act has no application to those collections and uses of personal information.

59. However, even though the PPIP Act does not apply to those activities in relation to taking attendances at Court, given the allegations made by the Applicant, the Respondent may wish to nonetheless review the processes for confirming parties’ identities at Court appearances and determine if any changes or further processes are needed to ensure the identity of the parties and those appearing on behalf of such parties in any Court proceedings.

60. Pursuant to s6 PPIP Act, the PPIP Act has no application in respect the Local Court Collections related Conduct of Concern complained of by the Applicant because that conduct was undertaken in the exercise of a judicial function of those Local Courts. The Tribunal therefore has no jurisdiction to review that the Local Courts Collections related Conduct of Concern under the PPIPA Act.

61. I do not find dismissal for “want of prosecution” pursuant to s55(1)(d) relevant under the circumstances. That section contemplates a failure or tardiness in the prosecution of the proceedings, filing of materials and the like (see Saisanavong v Commissioner of Police [2020] NSWCATAD 332 at [19] – [25]) which is not relevant in this case. However, in my view the Tribunal's lack of jurisdiction under s55 PPIP Act pursuant to s6 PPIP Act to hear Local Court Collections related Conduct of Concern is clearly within the meaning of "misconceived or lacking in substance" under s55(1)(b) CAT Act.

Incarceration Information and Removal Information

62. In the absence of specific evidence from the Applicant showing that the Respondent held the Incarceration Information and the Removal Information, I accept the Respondent’s evidence as regards the searches undertaken and I am satisfied that the Respondent did not hold such information as at the date of those searches for the purposes of the PPIP Act. Thus, the Respondent did (and in the circumstances could) not breach any of the relevant IPPs in respect of the Incarceration Information and the Removal Information because such do not apply to the Respondent as regards such information unless the Respondent actually holds that personal information. Thus, no further action need be taken.

MH Information

63. The Respondent clearly and thoroughly enunciated in its submissions why and how the MH Information was originally collected, the purpose for which it was collected at that time and why such was ‘accurate’ at the time of collection. However, the Respondent did not address in its submissions if there was any recent use of the MH Information (i.e. other than its original historic collection) and, if there was such a recent use, what reasonable steps it took in relation to that use to ensure that, at the time of that subsequent use, the MH Information was relevant, accurate, up to date, complete and not misleading prior to that use.

64. No submissions or evidence of a subsequent use of the MH Information contrary to HPP 9 was presented by the Applicant. In the absence of such, I have assumed that the only use of the MH Information to date was the original collection and use of it and, in that regards, I prefer the submissions of the Respondent. Thus, no further action need be taken.

65. However, should the MH Information be used by the Respondent for any purpose after its original collection, then for each such subsequent use the Respondent will need to comply with HPP 9. That is, at that time and for that proposed use of the MH Information, the Respondent will need to take such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the MH Information is proposed to be used at that time, the MH Information is relevant, accurate, up to date, complete and not misleading. That is, while the MH Information may be accurate in relation to its original collection and the original purpose for its collection/use, every proposed subsequent use of the MH Information requires that HPP 9 be applied to that use by the Respondent.

Orders

1. The Applicant’s application in respect of the allegation that the Respondent allowed another individual to falsely use the Applicant’s identity before the Port Macquarie Local Court and Wauchope Local Court is dismissed pursuant to s55(1)(b) CAT Act for being misconceived or lacking in substance (for want of jurisdiction) by the operation of s6 of the PPIP Act.

2. As regards the Applicant’s application regarding the Respondent holding inaccurate personal information of the Applicant, pursuant to section 55(2) of the Privacy and Personal Information Protection Act 1998, no further action is to be taken.

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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: 21 April 2021