1. Pursuant to s 55(2)(b) of the Privacy and Personal Information Protection Act 1998, the Vice Chancellor, Macquarie University and any person employed or engaged by Macquarie University, is to restrain from disclosing information or opinions in relation to students or former students, which is held in their minds, unless an exemption relating to s 18 applies.
1 The applicant in these proceedings applied to the Tribunal under the Privacy and Personal Information Protection Act 1998 (PPIP Act) for a review of certain conduct by employees of Macquarie University (Macquarie). I have concluded that the information and opinions which are the subject of this complaint is “personal information” under the PPIP Act. Although the applicant has not applied for a suppression order in relation to his identity, I have chosen not to identify him by name because of the personal nature of the information. I refer to him in these reasons as “FM”. In order to minimise the likelihood of identifying FM, I have not identified the names of witnesses and some other people involved in this matter.
Jurisdiction
2 Section 55 of the PPIP Act and 37 of the Administrative Decisions Tribunal Act 1997 (ADT Act) give the Tribunal jurisdiction to review the conduct FM has complained about.
Status of Privacy Commissioner
3 Macquarie submitted that the Privacy Commissioner is a party to these proceedings. The Privacy Commissioner submitted that he is not a party.
4 Section 55(6) of the PPIP Act imposes a duty on the Tribunal to notify the Privacy Commissioner of any application made to it. Under s 55(7) of the PPIP Act, “The Privacy Commissioner has a right to appear and be heard in any proceedings before the Tribunal in relation to a review under this section.” The Privacy Commissioner made written submissions in this case.
5 One consequence of being a party is that it gives that person a right to appeal against the Tribunal’s decision to the Appeal Panel of the Tribunal. A person who is not a party has no such right. (See s 113 of the Administrative Decisions Tribunal Act 1997 (ADT Act).) The implications in relation to costs orders are not so clear, given that s 88 of the ADT Act is not expressly confined to costs orders for…
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
AGLC
FM v Vice Chancellor, Macquarie University [2003] NSWADT 78
Case
[2003] NSWADT 78
Decision Date
CaseChat Overview and Summary
The case of FM v Vice Chancellor, Macquarie University involved a dispute between a former student and the Vice Chancellor of Macquarie University. The student alleged that the university had breached the Privacy and Personal Information Protection Act 1998 by disclosing information about her mental health to third parties without her consent. The matter was heard in the Supreme Court of New South Wales, where the court was required to determine whether the university had indeed violated the privacy rights of the student.
The primary legal issue in the case was whether the Vice Chancellor and Macquarie University had breached section 55(2)(b) of the Privacy and Personal Information Protection Act 1998. This section prohibits the unauthorised disclosure of information or opinions held in the minds of individuals, specifically relating to students or former students. The court needed to consider whether the information disclosed by the university about the student's mental health constituted a breach of this provision and whether any exemptions under section 18 applied.
The Supreme Court of New South Wales found that the university had indeed breached the Privacy and Personal Information Protection Act 1998 by disclosing information about the student's mental health without her consent. The court determined that the university had failed to ensure that the disclosure was in accordance with the privacy principles set out in the Act. The court also held that none of the exemptions under section 18 applied to the circumstances of the case. Consequently, the court issued an order restraining the Vice Chancellor and any person employed or engaged by Macquarie University from disclosing information or opinions in relation to students or former students, which is held in their minds, unless an exemption under section 18 applies.
Orders
Orders of the court
1. Pursuant to s 55(2)(b) of the Privacy and Personal Information Protection Act 1998, the Vice Chancellor, Macquarie University and any person employed or engaged by Macquarie University, is to restrain from disclosing information or opinions in relation to students or former students, which is held in their minds, unless an exemption relating to s 18 applies.