GA v Department of Education and Training

[2005] NSWADT 47

CITATION:	GA v Department of Education and Training [2005] NSWADT 47 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	General Division
PARTIES:	APPLICANT GA RESPONDENT Department of Education and Training
FILE NUMBER:	043381
HEARING DATES:	24/01/2005
SUBMISSIONS CLOSED:	01/24/2005
DATE OF DECISION:	03/04/2005
BEFORE:	Hennessy N - Magistrate (Deputy President)
APPLICATION:	Jurisdiction
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Privacy & Personal Information Protection Act 1998
CASES CITED:	Australian Conservation Foundation Inc v Commonwealth [1983] VR 385 Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 71 ALR 73 GL v Director-General, Department of Education and Training [2003] NSWADT 166 JD v Director General, NSW Department of Health [2004] NSWADT 7 (revised) Minister for Family Services v SmithKline Beecham (Aust) Pty Ltd (1994) 121 ALR 373 Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64.
REPRESENTATION:	APPLICANT In person RESPONDENT Dr A Bendall, solicitor
ORDERS:	1. The Tribunal has jurisdiction to deal with conduct referable to eight comments recorded by Ms Diamond in her report dated 16 August 2002, namely the items numbered 3, 8, 9, 10, 11, 12, 13 and 14; 2. GA does not have standing in relation to items 1, 2, 4, 5, 6 and 7; 3. GA’s standing in relation to item 15 will be determined at the hearing into the substantive application; The Tribunal directs that:; GA file and serve written submissions in support of his application identifying the precise nature and extent of the conduct within 28 days of receiving this decision; The Department file and serve written submissions in support of its case within a further 28 days; Registry to allocate a hearing date suitable to Tribunal and both parties

Introduction

1 GA has made several applications to the Tribunal under the Privacy and Personal Information Protection Act 1998 (the PPIP Act) relating to a series of events concerning the manner in which the Department of Education and Training (the Department) and NSW Police dealt with personal information about himself and members of his family. GA’s concerns arose from three events. On 5 November 2000 police attended his home to interview the girlfriend of one of his sons. This young woman, who I will refer to in these reasons as “the student” had been involved in a serious domestic dispute with her mother and her mother’s partner. The second event occurred on 10 November 2000 when police went to the High School which the student attended and spoke to the Principal about the student and her family. About a year later, on 23 October 2001, the Principal wrote to NSW Police in response to a letter from them relating to another complaint GA had made about the failure of police to take out an Apprehended Violence Order (AVO) to protect the student. The writing of that letter formed part of the conduct that GA complained about in a previous application to the Tribunal. (File No: 023250)

2 Prior to carrying out an internal review of the conduct of the Principal in writing the letter to the NSW Police, the Department undertook an investigation of the circumstances surrounding the writing of that letter. As part of that process, an employee of the Department, Ms Lois Diamond, interviewed the Principal of the High School. GA summonsed that material in his previous application. When he saw Ms Diamond’s report he requested an internal review of the conduct that was reflected in the report. That application for internal review was made “on behalf of all potentially aggrieved parties including” himself, his wife, his three sons and the student. At the hearing GA abandoned any claim that he was acting on behalf of anyone except himself.

Issues

3 The following issues relating to the Tribunal’s jurisdiction arise for consideration:

a) What is the conduct that GA is asking to be reviewed?

b) Is GA a person “who is aggrieved by the conduct” of the Department?

c) Has the Tribunal already dealt with the conduct that GA has asked to be reviewed?

4 Following his request for an internal review, the Department asked GA to provide further information about the conduct he was asking to be reviewed. He did so by forwarding a one page summary specifying various Information Protection Principles (IPPs) set out in the PPIP Act and quoting 15 passages from Ms Diamond’s hand written notes which he said breached one or more of those IPPs. The IPPs on which GA relied were the IPPs in ss 13, 16, 17 and 19. GA did not need to identify the information protection principles on which he relies. (GL v Director-General, Department of Education and Training [2003] NSWADT 166 at [26]; JD v Director General, NSW Department of Health [2004] NSWADT 7 (revised).) But he does need to identify the conduct about which he is aggrieved.

5 While GA agreed at the hearing that the 15 passages formed the basis of the conduct about which he was complaining he said that he was still relying on all the IPPs mentioned in his original application, namely ss 8, 9, 10, 11, 12, 16, 17, 18 and 19. GA has only identified the conduct about which he is complaining by linking certain passages in the report to the IPPs. While the conduct has not been explicitly identified, I have assumed, for the purposes of these reasons, that it includes allegations about the disclosure or use of information by the Principal to Ms Diamond of information about himself, two of his sons and the student, collection and use of that information by Ms Diamond, failure to check the accuracy of certain personal information and failure to take reasonable steps to enable GA to ascertain the nature, purpose and access arrangements in relation to personal information relating to him. The precise nature and extent of the conduct will have to be identified by GA prior to the hearing on the substantive matter.

Is GA “aggrieved by the conduct”?

6 Meaning of “aggrieved by the conduct”. In order to be entitled to an internal or an external review of the Department’s conduct, GA must be a person who is “aggrieved by the conduct”: s 53 of the PPIP Act. The purpose of the term “person aggrieved” in a statute is to identify “the class of persons given standing to utilise a procedure established by statute.” The meaning of the term depends on the scope and purpose of the statute in which it is found. (Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 71 ALR 73 at 79 per Gummow J; see also Australian Conservation Foundation Inc v Commonwealth [1983] VR 385 at 400 per Murray J and at 405-406 per Marks J; and Ogle v Strickland (1987) 71 ALR 41.) For example, the term has been given a broad construction in statutes such as the Administrative Decisions (Judicial Review) Act 1977 because of its remedial nature. In Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64 Ellicott J said at 79:

The words “a person who is aggrieved” should not, in my view, be given a narrow construction. They should not, therefore, be confined to persons who can establish that they have a legal interest at stake in the making of the decision. ... This does not mean that any member of the public can seek an order of review. I am satisfied, however, that it at least covers a person who can show a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the public. In many cases that grievance will be shown because the decision directly affects his or her existing or future legal rights. In some cases, however, the effect may be less direct. It may affect him or her in the conduct of a business or may, as I think is the case here, affect his or her rights against third parties (cf Robinson v Western Australian Museum (1977) 16 ALR 623; 138 CLR 283).

7 The test may be more flexible in merits review proceedings than it is in judicial review proceedings. In Minister for Family Services v SmithKline Beecham (Aust) Pty Ltd (1994) 121 ALR 373 at 383 Davies J said:

In US Tobacco [ US Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520; 83 ALR 79] at FCR 529; ALR 89, the court said: “The nature of the interest required in a particular case will be influenced by the subject matter and content of the decision under review.” This must be so with respect to the phrase “interests are affected”, when used in a statute which provides for the administrative review of an administrative decision. In such event, the review, which forms part of the process of administrative decision-making, is provided to promote the achievement of the objects of the statute. The term “aggrieved”, when used in the context of judicial review, may have a different connotation, for the object of judicial review is to ensure that the law is observed.”

8 The scope and purpose of the PPIP Act is reflected in the long title which begins “An Act to provide for the protection of personal information, and for the protection of the privacy of individuals generally; …” Such a purpose is also evident from the wide definition of “personal information” in s 4. The PPIP Act is beneficial legislation and accordingly a broad interpretation of the words “person aggrieved” is appropriate. However, the person must nevertheless be “aggrieved” because he or she believes that the conduct constitutes a breach of the PPIP Act, not for any extraneous reason.

9 Application of the law to the facts. The 15 passages which GA highlighted are excerpts from Ms Diamond’s notes of what the Principal told her in response to her questions about the content of his letter dated 23 October 2001 and other matters. The Department conceded that the passages numbered 3, 8, 9, 10, 11, 12, 13 and 14 from Ms Diamond’s report, all relate directly to GA and that he is a person “aggrieved” by that conduct. Consequently the conduct relevant to the passages numbered 1, 2, 4, 5, 6, 7 and 15 were the only passages which were in issue. Those passages are set out below. The background to the comments about the student was that she had been involved in a serious domestic dispute with her mother and her mother’s partner. The reference to “girl” is a reference to the student. The testing kit in item 6 relates to a pregnancy testing kit.

1. “Counsellor didn’t see girl”

2. “Counsellor unlikely to tell girl to ‘grow up’: May have been HT (head teacher) Welfare.”

4. “Resentment of (student) – based on discussions with HT Welfare – opinion formed after an extensive discussion with mother & partner, & mother told (student) really resented partner.”

5. “(Son) is the fire starter & charged: fact.”

6. “Police Report – Testing Kit: P (Principal) “spoke to (student’s mother) who told she had found testing kit – (student’s mother) said deliberately done by (student).”

7. ‘Gloating’ –“based on what (student) was telling friends at school – well known over entire school.”

15. “Police gave copy of investigation to Principal.” (Words in brackets added.)

10 GA submitted that the passages in 1, 2, 4, 6 and 7 imply that the student was not honest or that she had a motive for causing trouble. GA said that this implication affected the attitude Departmental officers took to various complaints that he made both under the PPIP Act and under other legislation. According to GA, Departmental officers considered his complaints to be lacking in merit because of their position on the student’s credibility and he was forced to do a great deal of extra work to overcome the Department’s prejudice against him. GA maintained that the negative attitude of the Department was not confined to the previous internal review but that that attitude generally tainted the Department’s response to his complaints.

11 It is clear from GA’s submission that he is aggrieved, not because he believes that the conduct constitutes a breach of the PPIP Act in relation to the student, but because of the way he says the comments have affected the Department’s attitude to his complaints. Given the scope and purpose of the PPIP Act, an applicant’s grievance must relate to concerns about the protection of personal information or a person’s privacy, not to unrelated matters. In my view GA does not have standing in this Tribunal to pursue a grievance that is unrelated to the purpose of the PPIP Act. Consequently GA does not have standing in relation to items 1, 2, 4, 6 and 7.

12 In relation to the passage in item 5, GA said that a false allegation about a member of his family affects him. I am not persuaded that the principle can be stated so broadly. Whether or not a parent is aggrieved by the conduct of an agency which relates to his or her child, is a question of fact to be determined depending on the circumstances of each case. If the parent has legal responsibility for the child, because, for example, the child is a minor or has a disability, a parent may have standing to lodge a complaint in his or her own right. However where, as in this case, the child is an adult and there is no evidence of him or her consenting to or supporting the application made by a parent, then a real issue arises as to the parent’s standing. In addition, in this case, there is no connection between the alleged conduct of the agency and GA. The comment in item 5 relates exclusively to the son. In all the circumstances I am not satisfied that GA is “aggrieved by the conduct” of the agency that relates to his adult son.

13 In relation to 15, GA said that the copy of the police investigation given to the Principal contained information about him. If that is correct, then GA may be aggrieved by the conduct of the agency in dealing with this document. Further evidence is needed before the Tribunal can make a finding that GA is aggrieved by any conduct relating to the police investigation document.

Has the Tribunal already dealt with the conduct about which GA is complaining?

14 The final issue is whether the Tribunal had already dealt with the conduct about which GA is complaining. The Department submitted because Ms Diamond’s report was prepared for the purpose of conducting a previous internal review, that report has already been taken into account by the Department. According to the Department, GA cannot bring a further application relating to the conduct of the Principal or Ms Diamond when preparing a report for the use of the Departmental officer. GA submitted that the conduct that gave rise to the preparation of Ms Diamond’s report has not itself been reviewed by the Department.

15 The previous application related to the letter the Principal wrote to NSW Police. The conduct in the present case relates, at least in part, to the collection and use of information during an interview between Ms Diamond and the Principal as part of the investigation of the previous application. It will be a question of fact to be decided when the conduct is sufficiently identified, as to whether it has previously been dealt with by the Department. I will finally determine that issue at the substantive hearing.

Conclusion

16 GA has complained about conduct referable to 15 remarks made by the Principal of the High School and recorded by Ms Diamond in her report of 16 August 2002. While the precise nature and extent of the conduct about which GA is complaining has not yet been identified, I am satisfied that GA is aggrieved by the conduct that relates to passages numbered 3, 8, 9, 10, 11, 12, 13 and 14. Further evidence is needed in relation to item 15.

Orders

1. The Tribunal has jurisdiction to deal with conduct referable to eight comments recorded by Ms Diamond in her report dated 16 August 2002, namely the items numbered 3, 8, 9, 10, 11, 12, 13 and 14.

2. GA does not have standing in relation to items 1, 2, 4, 5, 6 and 7.

3. GA’s standing in relation to item 15 will be determined at the hearing into the substantive application.

The Tribunal directs that:

GA file and serve written submissions in support of his application identifying the precise nature and extent of the conduct within 28 days of receiving this decision.

The Department file and serve written submissions in support of its case within a further 28 days.

Registry to allocate a hearing date suitable to Tribunal and both parties.

30/05/2005 - To correct Order 2 to insert item 5 - Paragraph(s) Cover page and Orders