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GHX v Department of Education

GHX v Department of Education

Case [2025] NSWCATAD 95 2 May 2025

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: GHX v Department of Education [2025] NSWCATAD 95
Hearing dates: 4 December 2024, written submissions closed 5 February 2025
Date of orders: 02 May 2025
Decision date: 02 May 2025
Jurisdiction: Administrative and Equal Opportunity Division
Before: D Dinnen, Senior Member
Decision:
(1) The Tribunal affirms the Respondent’s reviewable decision of 28 March 2024 that the Respondent breached s 18 of the Privacy and Personal Information Protection Act 1998 (NSW).
(2) The Tribunal sets aside the remainder of the Respondent’s reviewable decision of 28 March 2024, and in accordance with these reasons for decision, in substitution, decides that:
(a) the Respondent breached s 12(c) of the Privacy and Personal Information Protection Act 1998 (NSW); and
(b) the Respondent did not breach s 17 of the Privacy and Personal Information Protection Act 1998 (NSW).
(3) Pursuant to s 55(2)(g) of the Privacy and Personal Information Protection Act 1998 (NSW), the Tribunal orders the Respondent to review and update its Privacy Bulletin on Photographs and Recordings in accordance with these reasons for decision and disseminate the updated Privacy Bulletin to School staff and School Communities.
(4) The publication or broadcast of the name of the Applicant, the Applicant’s Child, the School attended by the Child, the School’s Principal and staff is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

Catchwords:
ADMINISTRATIVE LAW – Privacy – Information Privacy Principles – IPP 5 Protection of personal information – IPP 10 Use of personal information – IPP 11 Disclosure of personal information – whether “use” or “disclosure” - Photography of school students – publication of School newsletters – appropriate relief

Legislation Cited:
Civil and Administrative Tribunal Act 2013
Privacy and Personal Information Protection Act 1998

Cases Cited:
AFC v Sydney Children’s Hospital Specialty Network [2012] NSWADT 189
AFP v Hunter New England Local Health District [2012] NSWADT 141
AIN v Medical Council of New South Wales [2017] NSWCATAP 23
ALZ v WorkCover NSW [2015] NSWCATAP 138
ALZ v WorkCover NSW (No 2) [2014] NSWCATAD 122
AW v Vice Chancellor University of Newcastle [2008] NSWADT 86
BXK v Western Sydney University [2016] NSWCATAD 235
CNC v NSW Police Force [2017] NSWCATAD 94
CYL v YZA [2016] NSWCATAD 314
Director General, Department of Education and Training v MT (2006) 67 NSWLR 237
Director General, Department of Education and Training v MT (GD) [2005] NSWADTAP 77
EIG v North Sydney Council [2022] NSWCATAD 127
FH v Commissioner, New South Wales Department of Corrective Services [2003] NSWADT 72
GKT v Fire and Rescue New South Wales [2024] NSWCATAD 335
KJ v Wentworth Area Health Service [2004] NSWADT 84
KO and KP v Commissioner of Police, NSW Police Force (GD) [2005] NSWADTAP 56
MT v Director General, NSW Department of Education & Training [2004] NSWADT 194
NZ v Director General, NSW Department of Housing [2005] NSWADT 58
OD v Department of Education and Training [2005] NSWADTAP 74
PN v Department of Education…

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.

Continue reading GHX v Department of Education

Details

AGLC: GHX v Department of Education [2025] NSWCATAD 95
Case: [2025] NSWCATAD 95
Decision Date: 02 May 2025

CaseChat Overview and Summary

GHX commenced proceedings against the Department of Education, asserting that the Department breached privacy laws by photographing their child at school and publishing the photograph in a school newsletter without consent. The matter was heard and determined by the Civil and Administrative Tribunal (CAT). The Tribunal had to decide whether the Department's actions constituted a breach of the Privacy and Personal Information Protection Act 1998 (NSW), specifically sections 12(c), 17, and 18. Furthermore, the Tribunal needed to determine whether the Department's actions amounted to a "use" or "disclosure" of personal information, and what relief, if any, should be ordered.

The Tribunal found that the Department breached section 12(c) of the Act by using personal information without consent. However, the Tribunal held that the Department did not breach section 17 of the Act, which pertains to the quality of personal information. The Tribunal also held that the Department did breach section 18 of the Act by disclosing personal information without consent. The Tribunal concluded that the Department's actions amounted to both a "use" and "disclosure" of personal information. In terms of relief, the Tribunal ordered the Department to review and update its Privacy Bulletin on Photographs and Recordings, and to disseminate the updated Bulletin to school staff and school communities. The Tribunal also ordered that the publication or broadcast of the names of the Applicant, the Applicant's Child, the School attended by the Child, the School's Principal, and staff was prohibited.

Orders

Orders of the court

(1) The Tribunal affirms the Respondent’s reviewable decision of 28 March 2024 that the Respondent breached s 18 of the Privacy and Personal Information Protection Act 1998 (NSW).

(2) The Tribunal sets aside the remainder of the Respondent’s reviewable decision of 28 March 2024, and in accordance with these reasons for decision, in substitution, decides that:

(a) the Respondent breached s 12(c) of the Privacy and Personal Information Protection Act 1998 (NSW); and

(b) the Respondent did not breach s 17 of the Privacy and Personal Information Protection Act 1998 (NSW).

(3) Pursuant to s 55(2)(g) of the Privacy and Personal Information Protection Act 1998 (NSW), the Tribunal orders the Respondent to review and update its Privacy Bulletin on Photographs and Recordings in accordance with these reasons for decision and disseminate the updated Privacy Bulletin to School staff and School Communities.

(4) The publication or broadcast of the name of the Applicant, the Applicant’s Child, the School attended by the Child, the School’s Principal and staff is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

GHX v Department of Education [2025] NSWCATAD 95

Cases Citing This Decision

No citing cases yet.

Cases Cited

GKT v Fire and Rescue New South Wales [2024] NSWCATAD 335
Citation 1 (Para 19)

…y safeguards are reasonable, as is the response time of staff to concerns raised about security issues: GKT v Fire and Rescue New South Wales [2024] NSWCATAD 335 at [37], XW v Department of Education and Training [2009] NSWADT 73 at [92].…
EIG v North Sydney Council [2022] NSWCATAD 127
Citation 2 (Para 27)

…In EIG v North Sydney Council [2022] NSWCATAD 127, the Tribunal found that in the context of the health privacy principles (HPPs), ‘use’ and ‘disclosure’ are “separate concepts”, at [89]:…
CNC v NSW Police Force [2017] NSWCATAD 94
Citation 3 (Para 28)

…formation is internal to the agency (that is, a use) or the provision of information to a party external to it (a disclosure): CNC v NSW Police Force [2017] NSWCATAD 94 at [20]. The ‘use’ of information should be considered in the context of the purpose for which the information was 'collected’ : AW v Vice Chancellor…
BXK v Western Sydney University [2016] NSWCATAD 235
Citation 4 (Para 15)

…lice, NSW Police Force (GD) [2005] NSWADTAP 56 at [13]; OD v Department of Education and Training [2005] NSWADTAP 74; BXK v Western Sydney University [2016] NSWCATAD 235 at [13].…
CYL v YZA [2016] NSWCATAD 314
Citation 5 (Para 28)

…information for its own purposes, internally: Director General, Department of Education and Training v MT (GD) [2005] NSWADTAP 77 at [39]; CYL v YZA [2016] NSWCATAD 314 at [100], PN v Department of Education and Training [2010] NSWADTAP 59 at [29]…
ALZ v WorkCover NSW (No 2) [2014] NSWCATAD 122
Citation 6 (Para 19)

…ards considered reasonable will depend on both the nature of the information and the medium in which it is stored: see ALZ v WorkCover NSW (No 2) [2014] NSWCATAD 122 at [31]. Failure to have a policy about handling personal information, a policy about restricting access, storing student files in a way accessible to al…
AFC v Sydney Children's Hospital Speciality Network [2012] NSWADT 189
Citation 7 (Para 53)

…n and Training v MT (GD) [2005] NSWADTAP 77 at [29] and [33]. However, as discussed in AFC v Sydney Children’s Hospital Specialty Network [2012] NSWADT 189 at [42], and AIN v Medical Council of New South Wales [2017] NSWCATAP 23 at [81], there cannot be both “use” and “disclosure” arising from the same action or cou…
AFP v Hunter New England Local Health District [2012] NSWADT 141
Citation 8 (Para 17)

…In AFP v Hunter New England Local Health District [2012] NSWADT 141 (at [22]), the Tribunal agreed with the Privacy Commissioner's submission that when assessing whether or not conduct is identified in the internal review application (and thus reviewable by the Tribunal), it is open to the Tribunal to approach the t…
PN v Department of Education and Training [2010] NSWADTAP 59
Citation 9 (Para 28)

…ent of Education and Training v MT (GD) [2005] NSWADTAP 77 at [39]; CYL v YZA [2016] NSWCATAD 314 at [100], PN v Department of Education and Training [2010] NSWADTAP 59 at [29]…
RL v Department of Education and Training [2009] NSWADT 257
Citation 10 (Para 28)

…purpose for which the information was collected differs from the purpose for which it is later used: RL v Department of Education and Training [2009] NSWADT 257 at [27].…
XW v Department of Education and Training [2009] NSWADT 73
Citation 11 (Para 19)

…ns raised about security issues: GKT v Fire and Rescue New South Wales [2024] NSWCATAD 335 at [37], XW v Department of Education and Training [2009] NSWADT 73 at [92].…
AW v Vice Chancellor, University of Newcastle [2008] NSWADT 86
Citation 12 (Para 28)

…ion should be considered in the context of the purpose for which the information was 'collected’ : AW v Vice Chancellor University of Newcastle [2008] NSWADT 86 at [28]; ALZ v WorkCover NSW [2015] NSWCATAP 138 at [103]. A breach will arise if the purpose for which the information was collected differs from the purp…
Director General, Department of Education and Training v MT [2006] NSWCA 270
Citation 13 (Para 47)

…41]), nor did s 12(c) impose “absolute regulatory liability” (see Director General, Department of Education and Training v MT (2006) 67 NSWLR 237 at [46]).…
Director General, Department of Education and Training v MT [2005] NSWADTAP 77
Citation 14 (Para 28)

…s to action taken by the agency to use information for its own purposes, internally: Director General, Department of Education and Training v MT (GD) [2005] NSWADTAP 77 at [39]; CYL v YZA [2016] NSWCATAD 314 at [100], PN v Department of Education and Training [2010] NSWADTAP 59 at [29]…
OD v Department of Education and Training (GD) [2005] NSWADTAP 74
Citation 15 (Para 15)

…ew by the agency: see KO and KP v Commissioner of Police, NSW Police Force (GD) [2005] NSWADTAP 56 at [13]; OD v Department of Education and Training [2005] NSWADTAP 74; BXK v Western Sydney University [2016] NSWCATAD 235 at [13].…
KO and KP v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 56
Citation 16 (Para 15)

…imited to reviewing the scope of the application for the internal review by the agency: see KO and KP v Commissioner of Police, NSW Police Force (GD) [2005] NSWADTAP 56 at [13]; OD v Department of Education and Training [2005] NSWADTAP 74; BXK v Western Sydney University [2016] NSWCATAD 235 at [13].…
NZ v Department of Housing [2005] NSWADT 58
Citation 17 (Para 26)

…In NZ v Director General, NSW Department of Housing [2005] NSWADT 58 at [69]:…
MT v Director General, NSW Department of Education & Training [2004] NSWADT 194
Citation 18 (Para 19)

…ilure to take “such security safeguards as are reasonable in the circumstances”: MT v Director General NSW Department of Education & Training [2004] NSWADT 194 at [179]-[180]. Extent of staff training regarding access to personal information is also a relevant factor in considering whether security safeguards are re…
KJ v Wentworth Area Health Service [2004] NSWADT 84
Citation 19 (Para 24)

…The Tribunal has explored this distinction in a number of decisions. In KJ v Wentworth Area Health Service [2004] NSWADT 84 at [50]:…
FH v Commissioner, New South Wales Department of Corrective Services [2003] NSWADT 72
Citation 20 (Para 47)

…eguards need not be “perfect or ideal in every respect” (see FH v Commissioner, New South Wales Department of Corrective Services [2003] NSWADT 72, at [41]), nor did s 12(c) impose “absolute regulatory liability” (see Director General, Department of Education and Training v MT (2006) 67 NSWLR 237 at [46]).…

Legislation Cited

Administrative Decisions Review Act 1997 (NSW)
1 mention
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 4)
Privacy and Personal Information Protection Act 1998 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	GHX v Department of Education [2025] NSWCATAD 95
Hearing dates:	4 December 2024, written submissions closed 5 February 2025
Date of orders:	02 May 2025
Decision date:	02 May 2025
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	D Dinnen, Senior Member
Decision:	(1) The Tribunal affirms the Respondent’s reviewable decision of 28 March 2024 that the Respondent breached s 18 of the Privacy and Personal Information Protection Act 1998 (NSW). (2) The Tribunal sets aside the remainder of the Respondent’s reviewable decision of 28 March 2024, and in accordance with these reasons for decision, in substitution, decides that: (a) the Respondent breached s 12(c) of the Privacy and Personal Information Protection Act 1998 (NSW); and (b) the Respondent did not breach s 17 of the Privacy and Personal Information Protection Act 1998 (NSW). (3) Pursuant to s 55(2)(g) of the Privacy and Personal Information Protection Act 1998 (NSW), the Tribunal orders the Respondent to review and update its Privacy Bulletin on Photographs and Recordings in accordance with these reasons for decision and disseminate the updated Privacy Bulletin to School staff and School Communities. (4) The publication or broadcast of the name of the Applicant, the Applicant’s Child, the School attended by the Child, the School’s Principal and staff is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.
Catchwords:	ADMINISTRATIVE LAW – Privacy – Information Privacy Principles – IPP 5 Protection of personal information – IPP 10 Use of personal information – IPP 11 Disclosure of personal information – whether “use” or “disclosure” - Photography of school students – publication of School newsletters – appropriate relief
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Privacy and Personal Information Protection Act 1998
Cases Cited:	AFC v Sydney Children’s Hospital Specialty Network [2012] NSWADT 189 AFP v Hunter New England Local Health District [2012] NSWADT 141 AIN v Medical Council of New South Wales [2017] NSWCATAP 23 ALZ v WorkCover NSW [2015] NSWCATAP 138 ALZ v WorkCover NSW (No 2) [2014] NSWCATAD 122 AW v Vice Chancellor University of Newcastle [2008] NSWADT 86 BXK v Western Sydney University [2016] NSWCATAD 235 CNC v NSW Police Force [2017] NSWCATAD 94 CYL v YZA [2016] NSWCATAD 314 Director General, Department of Education and Training v MT (2006) 67 NSWLR 237 Director General, Department of Education and Training v MT (GD) [2005] NSWADTAP 77 EIG v North Sydney Council [2022] NSWCATAD 127 FH v Commissioner, New South Wales Department of Corrective Services [2003] NSWADT 72 GKT v Fire and Rescue New South Wales [2024] NSWCATAD 335 KJ v Wentworth Area Health Service [2004] NSWADT 84 KO and KP v Commissioner of Police, NSW Police Force (GD) [2005] NSWADTAP 56 MT v Director General, NSW Department of Education & Training [2004] NSWADT 194 NZ v Director General, NSW Department of Housing [2005] NSWADT 58 OD v Department of Education and Training [2005] NSWADTAP 74 PN v Department of Education…