JT v Technical and Further Education Commission

[2010] NSWADT 85

CITATION:	JT v Technical and Further Education Commission [2010] NSWADT 85
DIVISION:	General Division
PARTIES:	APPLICANT JT RESPONDENT Technical and Further Education Commission
FILE NUMBER:	083301
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	25 November 2009
DATE OF DECISION:	8 April 2010
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Privacy - jurisdiction - internal review application out of time
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Health Records and Information Privacy Act 2002 Privacy and Personal Information Protection Act 1998
CASES CITED:	BQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 64 KO & Anor v Commissioner of Police, NSW Police [2004] NSWADT 3 MG v Director General, Department of Education and Training [2004] NSWADTAP 45
REPRESENTATION:	APPLICANT In person RESPONDENT J Lucy, solicitor
ORDERS:	1. The application is dismissed insofar as it relates to conduct other than the conduct that was disclosed by the summons issued in the Anti-Discrimination Proceedings in March 2008 2. The matter is listed for a planning meeting at 11.00 am on 11 May 2010

REASONS FOR DECISION

1 In these reasons the names of several private individuals have been anonymised so as to preserve the privacy of their personal affairs. The Applicant is referred to as JT. I have also limited my discussion of the evidence in order to avoid the possibility that the identities of individuals might be revealed.

2 The Applicant has applied to the Tribunal for review of a decision of the Respondent concerning alleged breaches of the Privacy and Personal Information Protection Act 1998 (“PPIP Act”) and the Health Records and Information Privacy Act 2002 (“HRIP Act”). The Applicant 's allegations concern conduct of a number of officers employed by the Respondent.

3 The Respondent raised a number of issues in regard to the application, including the assertion that the internal review request was out of time in regard to some conduct, that the allegations as to offences are misconceived and the lack of jurisdiction regarding other conduct that was the subject of the internal review.

4 A preliminary issue arose in regard to the Applicant’s reliance on documents produced pursuant to summons issued in proceedings before the Tribunal’s Equal Opportunity Division (“the Anti-Discrimination Proceedings”). When making his application for internal review under the PPIP Act on 22 July 2008, the Applicant relied upon information contained in emails disclosed by the summons issued in the Anti-Discrimination Proceedings.

5 The Respondent argued that to the extent that the purported internal review application related to alleged conduct disclosed by the summons, the Tribunal has no jurisdiction to review this conduct under section 55 of the PPIP Act.

6 It submitted that in order to be aggrieved by the Respondent's conduct, the Applicant's interests must be affected by the conduct. It argued that as the Applicant was bound by an undertaking not to use information about the alleged conduct compulsorily obtained in the Anti-Discrimination Proceedings for purposes collateral to those proceedings, and he had no legal right to complain about such conduct, the Applicant was not "'aggrieved" by it. The Respondent conceded that the position would have been different if the Applicant had successfully applied to the Tribunal for leave to use the information for the purposes of seeking review of the alleged conduct under privacy legislation.

7 The Applicant in fact sought leave from the presiding Judicial Member in the Anti-Discrimination Proceedings. In an unpublished decision in September 2009 (“the September 2009 decision”), the Judicial Member ruled that the Applicant has leave to use the documents in this matter. The Judicial Member stated at paragraph [40]:

40 In this case, it is unclear whether only the three emails dated 4 February 2005, 1 March 2005 and 15 March 2006, or whether all the documents produced pursuant to summons, were relied upon by [the Applicant] in his internal review application dated 22 July 2008, and hence whether nunc pro tunc (or retroactive) leave would be needed only in respect of the two emails which were received in evidence or in respect of all documents produced in the anti-discrimination proceedings. If it were necessary, I would in all the circumstances of this case be satisfied that nunc pro tunc (or retroactive) authorisation of the use by [the Applicant] of all the documents in support of his internal review application would be in the public interest. In my view, this is not a case in which giving leave nunc pro tunc would occasion any relevant injustice to the respondent. To the contrary, there is a possibility of injustice to the Applicant in circumstances where the respondent raises the existence of a time period of six months in s 53(3)(a) of the PPIP Act for lodging an application for internal review as a potential impediment to the commencement by him of fresh proceedings. I do not consider that the use by [the Applicant] of the two emails, in particular, to commence the privacy proceedings would be such as to amount to an abuse.

8 The Respondent contends that there are other issues that affect this application that were not addressed by the September 2009 decision. To the extent that the complaints do not relate to material received under summons, the Respondent submits that the Applicant was aware of the alleged conduct more than six months before applying for internal review. The Respondent submits that the conduct occurred several years ago, and there is nothing to suggest that the Applicant only learned about it recently. The Respondent submits that the application was not properly made in relation to the alleged conduct about which the Applicant was aware over six months before he lodged his internal review application, and the Tribunal does not have jurisdiction to review that conduct.

9 The Respondent submits that the Tribunal does not have jurisdiction in regard to the aspect of the application relating to the Applicant's claim that the acts of TAFE staff are taken to have been done by the Respondent by reason of sections 62 or 63 of the PPIP Act or sections 68, 69 or 70 of the HRIP Act. The Respondent submits that the Applicant has misconstrued those provisions, and the nature of the Respondent's liability under those Acts. The Respondent further submits that the Applicant has not produced any evidence that any of the named persons in the points of claim committed an offence within sections 62 or 63 of the PPIP Act or sections 68, 69 or 70 of the HRIP Act and contends that the Tribunal does not have jurisdiction to determine whether offences under those provisions have been committed, as proceedings for offences are to be heard before a Local Court.

10 The Respondent also contends that to the extent that the application relates to material received under summons, the Applicant's application for internal review was not properly made, and so the Tribunal does not have jurisdiction to review that conduct.

Background

11 The Applicant was a student at a college operated by the Respondent. The Applicant asserts that he had a "disability” within the meaning of section 4(1) of the Anti-Discrimination Act 1977, being a depression and anxiety disorder for which he received psychiatric treatment.

12 In August 2004, the Applicant lodged with the Respondent a form entitled 'suggestion or complaint form" (the "August 2004 complaint"). The August 2004 complaint alleged that an employee of the Respondent had engaged in certain acts in contravention of the Anti-Discrimination Act.

13 The Applicant alleged that a number of the Respondent’s staff were advised of the August 2004 complaint. He says that some staff were advised that he “was involved in complaints about 10 of the staff” and that this was untrue, because the Applicant had complained only about one teacher.

14 The Applicant asserts that in September 2004, one of the Applicant's teachers announced to his class "your class has a very dangerous student who made formal complaint about his teacher." He says that, as a consequence of that announcement, he became a target and was provided no assistance from the teacher in the classroom and that he subsequently failed the course.

15 The Applicant also alleged that in September 2004, another of the Applicant's teachers expelled the Applicant from his class as a result of the complaint. He says that that teacher also commenced acting in an intimidating manner against the Applicant in his class between September 2004 and June 2005 and that the Applicant was frightened and was intimidated by that teacher. He asserts that the systematic attack against him were a result of the disclosure of the August 2004 complaint to the various Respondent’s staff and that the Applicant's teachers have aided and abetted victimization against him. He says that one of the Applicant's teachers acknowledged that he treated the Applicant differently because of the August 2004 complaint.

16 The Applicant asserts that a number of the Respondent’s staff engaged in conduct in contravention of the PPIP Act and the HRIP Act. In February 2005, the Applicant’s application to enrol in certain courses was refused. The Applicant also asserts that in February 2005, one of the Respondent’s staff sought access to a file held by the Respondent’s counselling unit.

17 In October 2005, the Applicant lodged a complaint with Anti Discrimination Board in regard to the alleged discrimination against him. In 2007 the Anti Discrimination Board referred his complaint to the Tribunal. This commenced the Anti-Discrimination Proceedings. A summons to produce documents was issued in those proceedings in March 2008 and over 450 pages were produced in response to the summons. The Applicant contends that this material showed that the Respondent’s staff breached the PPIP Act and the HRIP Act. The Applicant lodged a complaint to the Federal Privacy Commission in May 2008 and he was referred to Privacy NSW. In July 2008 the Applicant requested that the Respondent undertake an internal review of the alleged conduct. The Executive Officer, Office of the Director-General of Education and Training, Managing Director of TAFE NSW acknowledged receipt of the request by letter dated 29 July 2008. In August 2008 the Deputy Director-General TAFE and Community Education wrote to the Applicant noting:

I am advised that the matters you have raised in your correspondence are to be heard both by the Psychologists Registration Board of NSW, and the Administrative Decisions Tribunal in a hearing scheduled for 20 August 2008.
It is therefore appropriate that TAFE await the outcomes of those two investigations before responding to your allegations.

18 The Respondent did not undertake an internal review in the time provided for under section 53(6) of the PPIP Act. In October 2008, the Applicant lodged his application with the Tribunal and requested external review of the alleged conduct.

19 The Applicant asserts that the acts of the Respondent’s staff are taken to have been done by the Respondent by reason of section 62 and section 63 of the PPIP Act and also contravene sections 68, 69 and 70 of the HRIP Act. He alleges that he has suffered loss and damage by reason of the alleged contraventions.

20 Section 53 of the PPIP Act provides:

53 Internal review by public sector agencies

(1) A person (the applicant) who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct.
(2) The review is to be undertaken by the public sector agency concerned.
(3) An application for such a review must:
(a) be in writing, and
(b) be addressed to the public sector agency concerned, and
(c) specify an address in Australia to which a notice under subsection (8) may be sent, and
(d) be lodged at an office of the public sector agency within 6 months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct the subject of the application, and
(e) comply with such other requirements as may be prescribed by the regulations.
(4) Except as provided by section 54 (3), the application must be dealt with by an individual within the public sector agency who is directed by the agency to deal with the application. That individual must be, as far as is practicable, a person:
(a) who was not substantially involved in any matter relating to the conduct the subject of the application, and
(b) who is an employee or officer of the agency, and
(c) who is otherwise suitably qualified to deal with the matters raised by the application.
(5) In reviewing the conduct the subject of the application, the individual dealing with the application must consider any relevant material submitted by:
(a) the applicant, and
(b) the Privacy Commissioner.
(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 a 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.
(7A) A public sector agency may not pay monetary compensation under subsection (7) if:
(a) the applicant is a convicted inmate or former convicted inmate or a spouse, partner (whether of the same or the opposite sex), relative, friend or an associate of a convicted inmate or former convicted inmate, and
(b) the application relates to conduct of a public sector agency in relation to the convicted inmate or former convicted inmate, and
(c) the conduct occurred while the convicted inmate or former convicted inmate was a convicted inmate, or relates to any period during which the convicted inmate or former convicted inmate was a convicted inmate.
(8) As soon as practicable (or in any event within 14 days) after the completion of the review, the public sector agency must notify the applicant in writing of:
(a) the findings of the review (and the reasons for those findings), and
(b) the action proposed to be taken by the agency (and the reasons for taking that action), and

(c) the right of the person to have those findings, and the agency’s proposed action, reviewed by the Tribunal.

21 Section 55 of the PPIP Act provides:

55 Review of conduct by Tribunal

(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.
(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 5 of the Administrative Decisions Tribunal Act 1997.
(4) The Tribunal may make an order under subsection (2) (a) only if:
(a) the application relates to conduct that occurs after the end of the 12 month period following the date on which Division 1 of Part 2 commences, and
(b) the Tribunal is satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency.
(4A) The Tribunal may not make an order under subsection (2) (a) if:
(a) the applicant is a convicted inmate or former convicted inmate or a spouse, partner (whether of the same or the opposite sex), relative, friend or an associate of a convicted inmate or former convicted inmate, and
(b) the application relates to conduct of a public sector agency in relation to the convicted inmate or former convicted inmate, and
(c) the conduct occurred while the convicted inmate or former convicted inmate was a convicted inmate, or relates to any period during which the convicted inmate or former convicted inmate was a convicted inmate.
(5) If, in the course of a review under this section, the Tribunal is of the opinion that the chief executive officer or an employee of the public sector agency concerned has failed to exercise in good faith a function conferred or imposed on the officer or employee by or under this Act (including by or under a privacy code of practice), the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister (if any) for the public sector agency.
(6) The Privacy Commissioner is to be notified by the Tribunal of any application made to it under this section.
(7) 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.

Discussion

22 On 22 July 2008 the Applicant requested that the Respondent undertake an internal review of alleged conduct.

23 Section 53(3)(d) of the PPIP Act provides that an application for review of conduct of a public sector agency must be lodged within 6 months from the time the Applicant first became aware of the conduct the subject of the application, or by such later date as the agency may allow. In this case, the Respondent did not allow further time.

24 The Tribunal does not have jurisdiction to review conduct where an internal review application is not lodged within the time stipulated in section 53(3)(d) of the PPIP Act and the agency does not allow further time: BQ v Commissioner of Police, New South Wales Police Service [2002] NSWADT 64 at [21]-[27]; MG v Director General, Department of Education and Training [2004] NSWADTAP 45.

25 Accordingly, the Applicant was not entitled to lodge such a request in regard to conduct if he became aware of that conduct more than 6 months prior to 22 July 2008.

Did JT apply for an internal review in accordance with s 53(3)(d)?

26 It is clear from the material before me that the Applicant was aware of most of the conduct to which this application relates at least as early as October 2005. At that time the Applicant lodged a complaint with Anti Discrimination Board. He was clearly aware of much of the conduct in August and September 2004.

27 In my view, the Tribunal has no jurisdiction to deal with that part of the application and accordingly it should be dismissed.

28 However, it is common ground that some of the conduct was disclosed by the summons issued in the Anti-Discrimination Proceedings in March 2008. In light of the September 2009 decision I am satisfied that the Applicant was entitled to request review of the conduct disclosed by the summons. I do not understand it to be in dispute that his application for review of the conduct was lodged within 6 months from the time he first became aware of the conduct. In my view that part of the application was made in accordance with s 53(3)(d).

29 I am also satisfied that the Applicant was aggrieved by the conduct within the meaning of section 53(1) of the Act. He was specifically affected by the alleged breach of the Act: see discussion in KO & Anor v Commissioner of Police, NSW Police [2004] NSWADT 3 at paragraph [18].

30 In my view, the Tribunal has jurisdiction to deal with that part of the application that concerns conduct disclosed by the summons issued in the Anti-Discrimination Proceeding.

31 The matter should be listed for a further planning meeting to consider the future conduct of the matter.

Order

1. The application is dismissed insofar as it relates to conduct other than the conduct that was disclosed by the summons issued in the Anti-Discrimination Proceedings in March 2008.

2. The matter is listed for a planning meeting at 11.00am on 11 May 2010