MG v Department of Education and Training

[2004] NSWADT 137

CITATION:	MG v Director General, Department of Education and Training [2004] NSWADT 137
DIVISION:	General Division
PARTIES:	APPLICANT MG RESPONDENT Director General, Department of Education and Training
FILE NUMBER:	033335
HEARING DATES:	5/04/2004
SUBMISSIONS CLOSED:	05/21/2004
DATE OF DECISION:	07/09/2004
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Jurisdiction
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Privacy & Personal Information Protection Act 1998
CASES CITED:	BQ v Commissioner of Police [2002] NSW ADT 64 BY v Director General, Attorney General's Department [2002] NSWADT 79 Dawson v Wearmouth [1999] 2 All ER 353 Fitzpatrick -v- Chief Executive Officer, Ambulance Service of NSW [2003] NSWADT 132 I W and the City of Perth (1997) 191 CLR 1 Re Appleton and Telstra Corporation Lid (1993) 32 ALD 357 Re Petkovska and Telstra Corporation Ltd (1993) 31 ALD 767 Tydeman v Deputy Registrar of Child Support Agency, [1999] FCA 88 (12 February 1999) Y v Director-General, Department of Education and Training [2001] NSWADT 149
REPRESENTATION:	APPLICANT MG RESPONDENT Director General, Department of Education and Training
ORDERS:	MG’s application is dismissed for want of jurisdiction.

1 On 24 November 2003 the Applicant applied for review of a decision by a delegate of the Director General, Department of Education and Training (“the Department”). I have agreed not to identify the Applicant by name because of the personal nature of the information. In these reasons I refer to the Applicant as “MG”. I have also agreed that some other individuals involved in this matter should not be identified in order to minimise the likelihood of identifying MG, and other individuals who have sought to have their identities concealed.

2 The Department’s decision, dated 27 October 2003 was in the following terms:

“I am writing to advise you that following advice from Department of Education and Training legal officers I have altered the official enrolment details of your [children], from … as per Birth Certificate records.

As you know the children were originally enrolled in 2001 under the name … While this was in error the name … has been used for all purposes at the school since that time and your [children] are known and recognised by staff and other students as ... I appreciate your concern about this issue and the positive approach you have taken in our discussions in relation to it. Never the less, in accordance with Department of Education and Training policy in this type of situation the children will continue to be known as ...

If there are court orders which direct the name … be used, or if agreement can be reached with … to this effect I am most willing to make the necessary change.

Of course the school looks forward to continuing the positive relationship with you and … to ensure that your [children]’s … School experience is a happy and productive one.”

3 On 13 August 2003 MG applied to this Tribunal for orders under the Privacy and Personal Information Protection Act 1998 (“the Privacy Act”). MG asserted that the Department is a public sector agency that holds personal information (the enrolment records that the school has in regard to MG’s children) and therefore it must ensure that the personal information is accurate and not misleading. The Tribunal’s Deputy President dealt with that application on 16 September 2003. The Deputy President found that in order for the Tribunal to have jurisdiction under the Privacy Act the applicant must have applied to the agency for an internal review under section 53 of the Privacy Act. The application must be in writing, be addressed to the public sector agency, and has to be lodged within six months of the conduct occurring. The applicant must then be dissatisfied with the outcome of that review. The Deputy President was not satisfied that MG had made an application for an internal review, and she held that the Tribunal lacked jurisdiction to hear the application.

4 On 17 September 2003 MG sought an internal review of the Department’s decision. By letter dated 27 October 2003 the Department responded to MG’s application. In part, the Department’s letter stated:

“With regard to your complaint concerning the conduct of [the Department’s decision maker], I have determined that it does not satisfy the criteria for a privacy internal review under Part 5 of the Privacy and Personal Information Protection (`PPIP) Act 1998 and accordingly the Department of Education and Training will not conduct a privacy internal review.

Section 53(3)(d) of the Privacy Act states that an internal review must be lodged at an office of the public sector agency (in this case, the Department) within six months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct that is the subject of the application. As you clearly first became aware of the conduct, at the latest, on receipt of [the Department’s decision maker’s] letter of 27 November 2002, your application was lodged outside that time. Even if the fact of your mistaken earlier lodging of an application for review by the Administrative Decisions Tribunal were taken as being the date at which you first applied for an internal review it would still have been lodged outside of that time, as your application to the Tribunal was filed on 15 August 2003.

In considering whether or not to exercise the Department's discretion to allow an extension of this six month time period, the Department notes, after conducting an evaluation of the material supplied by you, that there is no evidence that the actions of [the Department’s decision maker] were in violation of sections 15 or 16 of the Privacy Act. We are also mindful of your previous correspondence in relation to the same issue and the decision of the Full Court of the Family Court of Australia .... In this case, it appears you are seeking to canvas that decision by means of an inappropriate application of the provisions of the Privacy Act. Consequently, your application for an internal review is refused.

Please note that, in the decision of Y v Director-General, Department of Education and Training [2001] NSWADT 149, the President of the Administrative Decisions Tribunal, Kevin O'Connor DCJ, made the following observation (at paragraph 73):

Where it is found, or there is no dispute, that the application for internal review is out of time, the agency has, I consider, a discretion to refuse to accept the application which is not amenable to reconsideration by the Tribunal.”

5 In relation to this application MG stated:

“I am seeking a review of both findings of the review by the Department and the action taken by the Department in relation to my application for an internal dated 17 September 2003.

This application herein is made in two (2) parts viz.

A) Review of the Findings of the Department in Not accepting my Application for an Internal Review out of time.

B) Review of the Findings of the Department and the Action taken by the Department in relation to Not carrying out an Internal Privacy Review.”

6 The Department asserts that the Tribunal has no jurisdiction to determine this application. The issue of jurisdiction is therefore to be determined as a preliminary matter.

Applicable legislation

7 Section 53 of the Privacy Act provides for an applicant to apply to an agency for an internal review of the agency’s conduct. That section 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, 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.”

8 Section 55 of the Privacy 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, 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.”

9 Accordingly, the Privacy Commissioner has a right to appear and be heard in any proceedings before the Tribunal in relation to a review under section 55 of the Privacy Act. Dr Gaudin represented the Privacy Commissioner and presented oral arguments before the Tribunal at hearing. The Privacy Commissioner subsequently made written submissions in this case.

10 Section 55 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”) provides for applications to the Tribunal for a review of a reviewable decision:

“55 When can an application for a review be made?

(1) A person may apply to the Tribunal for a review of a reviewable decision only if:

(a) the application is made by an interested person, and

(b) an internal review is taken to have been finalised under section 53 (9), and

(c) the application is made in the manner prescribed by the rules of the Tribunal, and

(d) the application is made within such period as may be prescribed by the rules of the Tribunal following the date on which the internal review is taken to have been finalised under section 53 (9).

Note: Section 4 defines interested person to mean a person who is entitled under an enactment to make an application to the Tribunal for an original decision or a review of a reviewable decision (as the case may be).

(2) However, subsection (1) (b) or (d) does not prevent a person from making an application in respect of a reviewable decision that has not been the subject of an internal review under section 53 if the Tribunal is satisfied that:

(a) the person was not at any time entitled to apply for an internal review of the decision, or

(b) the person made a late application for an internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the decision of the administrator concerned, or

(c) it is necessary for the Tribunal to deal with the application in order to protect the person’s interests and the application to the Tribunal was made within a reasonable time following the decision of the administrator concerned.

(3) In determining whether a late application for internal review was unreasonably refused or whether an application to the Tribunal was made within a reasonable time for the purposes of subsection (2), the Tribunal is to have regard to:

(a) the time when the applicant became aware of the making of the decision, and

(b) in a case to which subsection (2) (b) applies - the period prescribed by or under section 53 for the lodging of an application for an internal review, and

(c) such other matters as it considers relevant.”

11 As noted above, MG is seeking a review of two actions by the Department in relation to MG’s 17 September 2003 application for an internal review. MG has described those actions as “findings”. I will address the each of those issues as described by MG.

A) Review of the Findings of the Department in Not accepting my Application for an Internal Review out of time.

12 MG seeks a review of the Department’s ‘finding’ that MG had not lodged a competent application for an internal review. MG does not dispute the fact that the Department has discretion as to whether or not to accept an "out-of-time application" in accordance with section 53(3)(d) of the Privacy Act. However MG asserts that the Department made four significant errors when making that discretionary decision, and that if the Department had not made those errors it would have conducted an internal review. MG made detailed submissions in relation to each of these alleged errors.

13 The four alleged errors are:

The Department failed to take into account that other representations had been made.

14 In the period between receiving the letter dated 27 November 2002 and the time of the first application to the Tribunal MG had made various representations including representations to the then Minister for Education and Training. MG asserts that all these representations were within reasonable time of each other and the first application to the Tribunal was brought within four weeks of receiving a response to the last of those representations. MG submits that the mere fact that further reviews had been sought should have indicated to the Department that MG had not accepted the 27 November 2002 decision.

15 MG referred to Commonwealth Administrative Appeals Tribunal decisions in Re Petkovska and Telstra Corporation Ltd (1993) 31 ALD 767 and Re Appleton and Telstra Corporation Lid (1993) 32 ALD 357 in support of the submission that the Department was in error in not determining that the representations were sufficient reasons to consider conducting an internal review.

The Department did not provide reasons for its decision.

16 MG asserts that the Department was in error in not providing reasons for its ‘decision’ that MG was wrong in asserting that the actions of the Department’s decision maker were in violation of sections 15 and/or 16 of the Privacy Act. MG submits that where there is a future review process available, any agency needs to provide reasons when making a discretionary decision. Otherwise the review body cannot ascertain how the agency arrived at its decision. MG further asserts that the decision made by the Department in their letter dated 27 October 2003 is fundamentally flawed.

The Department's conclusion that its decision is not amenable to reconsideration by the Tribunal is in error.

17 MG submits that the Department is in error in asserting that its decision is not amenable to reconsideration by the Tribunal. The Department relied on views expressed by the Tribunal’s President in Y v Director-General, Department of Education and Training [2001] NSWADT 149 (“Y’s case”) at paragraph 73 of the decision. In that matter the President considered that the exercise of a discretion to refuse to accept an application for internal review, where the application is out of time, is not amenable to reconsideration by the Tribunal.

18 MG made submissions with respect to the application of Y’s case to this matter, arguing that Y's case should not be followed. Firstly MG submits that the word "application" in section 55(1)(b) simply means "application". For example, when an agency receives an application, the agency has to make a decision whether or not the application is made out and time. The fact that the action has been taken not to accept the application can be subject to review by the Tribunal.

19 MG argues that a decision by an agency as to whether or not to conduct an privacy internal review is part of the overall decision-making process. It is not an isolated decision as concluded by President O'Connor in Y’s case. The words “I have determined..." have been used in the Department's letter dated 27 October 2003. This means that the Department has made a decision in the overall process. MG referred to a finding that an intermediate decision is only part of the overall process and does not stand alone by the Full Court of the Federal Court Tydeman v Deputy Registrar of Child Support Agency, [1999] FCA 88 (12 February 1999).

20 MG also referred to comments by Judicial Member Britton in BQ v Commissioner of Police [2002] NSW ADT 64 (“BQ”) at paragraph 35:

“35 I am not entirely convinced that the words “in relation to the application” should be restricted in meaning, as submitted by the respondent, exclusively to the remedies or orders made following an internal review. While, as noted by the President there exists in Part 5 an apparent distinction between the words “action” and “findings”, the words, “in relation to the application” appear to me to be capable of broad interpretation and may embrace other action taken by the agency in relation to the application, not just the orders made as consequence of findings.”

21 MG submits that if the Tribunal does not agree that the word "application" does not mean "findings of the review" then the "other action" referred to by Judicial Member Britton should at least include the decision by the Department not to hold a internal review into this matter.

The Department came to the incorrect conclusion that MG was canvassing a previous decision.

22 MG denied the Department’s view expressed in the letter of 27 October 2003 that it appeared that MG is seeking to canvas the Family Court decision, and asserted that there has been no canvassing of the Family Court decision. MG further asserted that the Department’s view inappropriately and incorrectly affected the Department's decision to refuse MG’s application for an internal review.

23 As noted above, the Privacy Commissioner provided written submissions in relation to the issue of whether the Tribunal can undertake the review that MG seeks. Both MG and the Department provided submissions in response to the Privacy Commissioner's submissions. MG essentially agreed with and supported the arguments put forward by the Privacy Commissioner, while differing with respect to the application of section 55 Privacy Act. MG reiterated the argument that the Tribunal does have jurisdiction to determine the matter under section 55. Consistently, MG disagreed with the position adopted by the Department.

24 The Privacy Commissioner submitted:

“[I]t is clear from paragraph 36 of her judgment that Judicial Member Britton determined that the restriction on late applications for internal review meant that there was no competent application to which section 55(1)(b) might apply.

Fitzpatrick -v- Chief Executive Officer, Ambulance Service of NSW [2003] NSWADT 132 held that a review under section 55 of the Privacy Act is a review of a reviewable decision covered by Chapter 5 of the ADT Act. Section 55(3) of the [Privacy Act] makes Division 3 Part 3 of Chapter 5 of the ADT Act, which deals with the powers of the Tribunal when conducting reviews of reviewable decisions, applicable to a review under Section 55 of the [Privacy Act].

A number of the powers in Division 3 require reference to earlier sections in Chapter 5 of the ADT Act that deal with matters prior to the hearing of a review by the Tribunal. One such provision is section 53, which deals with the process of internal review of reviewable decisions. However section 52(4) of the [Privacy Act] disapplies section 53 of the ADT Act to the process of internal review prescribed under Chapter 5 and this in turn affects the power of the Tribunal to review late applications for internal review under section 55 of the ADT Act.

Under section 55(2)(b) of the ADT Act the Tribunal has the power to review a refusal to make a late application in relation to a review of a reviewable decision. … The Privacy Act makes no reference to section 55 of the ADT Act, and one might conclude that section 55 of the ADT Act therefore applies to reviews under section 55 of the [Privacy Act] in the same way as other reviews of reviewable decisions. However, subsection 55(2) of the ADT Act depends on subsections 1(b) and (d) which in turn can be seen to refer to the disapplied section 53 of the ADT Act. It therefore appears to follow that there is no object for subsection 55(2) to apply to in relation to privacy applications. A similar point was taken by Deputy President Hennessy in Fitzpatrick v Ambulance Service at paragraphs 16-17, where she found that the disapplication of section 53 was fatal to the power of the Tribunal to set time limits for appeals under section 55(1)(d) of the ADT Act.

I do not seek to argue that section 55 of the ADT Act applies to applications under the Privacy Act. The argument is rather that the absence of a power to review under section 55(1)(b) of the [Privacy Act] creates an anomalous position in relation to the overall application of Chapter 5 of the ADT Act to privacy reviews, and particularly in relation to the manner in which section 55(3) of the [Privacy Act] is intended to apply. An interpretation of section 55(1)(b) should take these consequences into account in particular where the effects are anomalous in the context of legislation that is intended to be beneficial and remedial.

The preponderance of the powers conferred on the Tribunal under Part 3, Division 3 are final powers. It is submitted that the Legislature intended the reference in section 55(3) of the [Privacy Act] to confer all the powers in Part 3, Division 3 on the Tribunal in relation to a privacy review, to the extent that they may be applicable, and not simply those powers which could be seen as incidental or ancillary to the manner in which the review should be conducted or determined.

Section 64 requiring the Tribunal to give effect to any applicable Government policy seems more applicable in privacy cases to a finding as to whether the Privacy Act has been breached or the action which it is open to the Tribunal to take under section 55(2) of the [Privacy Act] once it has heard an application than to matters incidental to a hearing.

Under section 63(2) of the ADT Act the Tribunal may, in determining an application, exercise all of the functions conferred or imposed by an Act on the original decision maker including affirming, varying, setting aside or remitting the decision. Under section 65(1) the Tribunal may remit a decision under review to the original decision maker at any stage of the proceedings. I would not suggest that these powers should be seen as providing a separate authority to review the decision of an agency to not entertain an internal review application. However they are consistent with the existence of such an authority, albeit one conferred by section 55(1)(b) of the [Privacy Act] rather than by section 55(2) or (3) of the ADT Act.

There are some conceptual issues involved in seeking to apply provisions in sections 63 and 65 that refer to decisions, to what section 55 of the [Privacy Act] characterises as a review of conduct. These issues should not be regarded as insuperable if it is recognised that the kind of conduct proscribed by Part 2 Division 1 of the [Privacy Act] is generally conduct which flows from policies or procedures adopted by a public sector agency or decisions by an employee of an agency to act in a particular way. Section 33 of the [Privacy Act] requires public sector agencies to adopt such policies in order to comply with the information protection principles. It should also be noted that the definition of decision in section 6(1)(g) of the ADT Act includes doing or refusing to do any other act or thing. If necessary, words such as "or the reviewable conduct" should be read into the way in which these powers are expressed.

To sum up, the broad powers conferred on the Tribunal by sections 63 and 65 of the ADT Act to review and the remedy the conduct which was the subject of an initial application for review under section 53 of the [Privacy Act] are inconsistent with an inability to review the decision taken by an agency to decline an out of time application. Section 55(1)(b) of the [Privacy Act] should not be interpreted so as to produce such an inconsistency.

At paragraph 70 of Y v DET President O'Connor stated:

The Privacy Commissioner drew attention to the position that applies in relation to the general internal review scheme, whereby applicants can seek review by the Tribunal in situations where an agency declines to deal with an application for internal review that has been lodged late. Rather than assisting the Privacy Commissioner's argument, this highlights in my view the difficulty that is faced in discerning any power in the Tribunal to examine a decision by an agency to refuse an application which is out of time. Had the legislature intended that the flexibility found in the general scheme should apply to Privacy Act internal reviews it is to be expected that it would have so provided.
With respect, this argument can be seen to beg the question, in that it seeks to rely on the authority of legislative intent to support an interpretation where what the legislature intended is the issue in dispute.

25 Ms Johnson for the Department submitted that MG’s complaint lacks jurisdiction and should be dismissed. The Department filed written submissions in response to MG’s arguments and further submissions in response to the privacy Commissioner. The Department submitted that MG’s arguments appear to be based on section 55(1)(a) of the Privacy Act and those arguments are wrong at law because the Department’s letter of 27 October 2003 did not constitute "the findings of the review" because the Department did not conduct a review.

26 With respect to MG’s submission as to the application of Y’s case, the Department submitted that section 55(1)(a) of the Privacy Act was not argued in Y’s case or in BQ which applied Y’s case. The Department urged that these decisions should be followed.

27 The Department submitted that the Privacy Commissioner has encouraged the Tribunal to circumvent the clear intention of parliament by the contention of inconsistency between the broad powers conferred on the Tribunal by sections 63 and 65 of the ADT Act and an inability to review the decision taken by an agency to decline an out of time application. The Department submitted that this is a fragile argument relying on implication and general policy considerations. Subsections 55(2)(b) and (3) of the ADT Act make provision for the ADT to review an agency's refusal to consider a late internal review application however these provisions are clearly predicated on section 53 of the ADT Act. Under section 52(4) of the Privacy Act, section 53 of the ADT Act is expressly said not to apply to or in respect of conduct to which Part 5 of the Privacy Act applies. Accordingly the Tribunal's power under the ADT Act to review an agency's decision to decline to consider a late internal review application are also excluded.

28 The Department argues that the exclusion of the Tribunal's existing power to allow a late internal review application must be accepted as a deliberate choice on the part of the legislature. The Department further argues that the Tribunal's power to review late internal review applications by the Tribunal is not unfettered. The Tribunal must be satisfied that the agency has unreasonably refused to consider the application and secondly, that the application to the Tribunal was made within a reasonable time following the decision of the agency. The Department submitted that the process provided for by section 55 of the ADT Act could not be directly transposed to privacy internal review applications. Section 55 is predicated on a two-stage decision making process. The Privacy Act, on the other hand, provides only one opportunity for an agency to review its conduct. The review regime established under the Privacy Act provides for the applicant to make a complaint about an alleged breach of privacy and the agency is then to conduct "an internal review". Although called an "internal review", this is in fact the first time that the agency has had an opportunity to formally consider the applicant's complaint.

29 It is submitted that the fact that there is a reasonably complex test for allowing late internal review applications in the ADT Act suggests that the question of whether to allow the Tribunal to overturn an agency's decision to decline an internal review application is something to be considered carefully. Thus, if the legislature had intended to establish a regime for the review of the late privacy internal review applications, it would have been logical for it to mirror the detailed scheme provided for in the ADT Act. Instead, the ADT Act scheme has been deliberately excluded from any application to the Privacy Act. In these circumstances, it would an error to imply a power to review of the kind found in section 55 of the ADT Act into the Privacy Act, on the strength of alleged anomalies.

30 In any event, it is argued, there is nothing in sections 63 to 65 of the ADT Act which leads to the conclusion that s. 55(l)(b) of the Privacy Act should be construed so as to allow the Tribunal to review an agency's decision under s. 53(3)(d) of the Privacy Act. Sections 63 to 65 of the ADT Act expressly deal with the powers of the Tribunal in relation to the review of decisions. They clearly only come into play once the Tribunal has jurisdiction to deal with an application. They are irrelevant to the question of whether the Tribunal has a competent application before it.

31 The Department concedes that the Privacy Act is beneficial legislation. However it is submitted that the construction contended for the Acting Privacy Commissioner is unreasonable and strains the natural meaning of the words used in sections 53 and 55 of the Privacy Act. The Department referred to the decision in I W and the City of Perth (1997) 191 CLR 1 where Brennan CJ and McHugh J considered the appropriate approach to the construction of remedial or beneficial legislation. Their Honours said at 12:

“...It is to be given “a fair, large and liberal' interpretation rather than one which is 'literal or technical”. Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural...”

32 The Department argues that if a purposive approach to construction is adopted it leads to the conclusion that section 53(3)(d) provides that an agency can refuse to consider a complaint when it is made more than 6 months after the complainant became aware of the conduct complained of so as to limit an agency's exposure to a privacy complaint that is too old to be properly investigated. Accordingly the application should be dismissed for want of jurisdiction.

B) Review of the Findings of the Department and the Action taken by the Department in relation to Not carrying out an Internal Privacy Review.”

33 Under this aspect of the application MG has asserted that the Department has contravened various sections of the Privacy Act. MG relies on two arguments in seeking to overturn the Department's decision.

“Reason 1.

a) When making their decisions, there has been a failure by the three (3) persons mentioned above, acting in their respective positions, to follow the Department of Education and Training "Family Law and the School" policy regarding naming of children in schools.

b) The policy states that the School Principal must enrol the student under the name indicated on the student's birth certificate. That is, unless certain specific requirements can be met by the enrolling parent. None of these specific requirements have been met.

c) By having the children "known as" by a different name effectively, and at the same tune incorrectly, by-passes the intent of the Department's own policy with respect to the naming of children.

Reason 2.

a ) The [Department’s decision maker] and the Ministers, acting in their respective positions, have failed to take into account the significance of the putting of the children's names on the birth certificates. This is despite the fact that the names of the children were placed on the children' birth certificates (by the consent of both parents) under the (NSW) Births Deaths and Marriages Registration Act 1995, section 21(1),

b) They failed to appreciate that the intention of entering a name on a birth certificates is the name that it is intended that the children to be known as. (refer the House of Lords decision in Dawson v Wearmouth [1999] 2 All ER 353, 2 WLR 960, 1 FLR 1167)”

34 In my view these assertions go to the substantive issues of the case and therefore need not be considered at this stage. This preliminary issue is limited to whether or not the Tribunal has jurisdiction to determine the application.

Findings

35 MG’s arguments are dependent upon the view that two earlier decisions of the Tribunal, Y’s case and BQ, should not be followed. While I agree that there is no obligation to follow earlier decisions, the Tribunal should be slow to reopen rulings of an earlier Tribunal. This is particularly so where earlier rulings were made following detailed submissions, including submissions from the Privacy Commissioner, as was the case in both Y’s case and BQ.

36 In BY v Director General, Attorney General's Department [2002] NSWADT 79, President O'Connor dealt with the question of precedent in the Tribunal as follows:

"Threshold Issue: Reopening Prior, Considered Tribunal Rulings

21 The threshold question that arises before considering any further these contentions is whether the present Tribunal should revisit the prior considered rulings. Counsel for the Administering Minister acknowledged the importance of different panels of a Division of the Tribunal being seen to deal consistently with the same or like questions. He acknowledged that the view might be taken that it would not be appropriate to revisit the previous, considered rulings.

22 In my view, a later Tribunal should exercise caution in reopening prior, considered rulings of an earlier Tribunal. Ordinarily a later Tribunal should adopt the ruling of the earlier Tribunal; and leave these questions to be finally determined within the Tribunal at the Appeal Panel level. Notably in the earlier cases where the Administering Minister’s submissions have been rejected, there was no appeal; but that may have been, as counsel for the Administering Minister suggested at hearing, because ultimately following full substantive consideration the determinations in issue were affirmed.

23 Normally a prior considered Tribunal ruling should only be reopened if a new, significant argument is raised before the later Tribunal. This is not such a case. Nonetheless, I consider that some discretion should be allowed to a Divisional Head sitting at first instance to revisit prior rulings, where the Divisional Head has doubts about the prior rulings or the questions involved are of great significance, such as ones raising important issues of power or jurisdiction. (Such a ruling may itself be appealed to the Appeal Panel. In that event, the Divisional Head, who would customarily preside, is ineligible. Where there is an appeal in relation to such a ruling, the Appeal Panel should, in my view, give consideration, if it regards the ruling as doubtful, to referring the controversial question to the Supreme Court for determination.)”

37 The issue then is whether the present case is one where the questions involved are of such importance that I should not simply adopt the prior rulings but reconsider them. Given that there appears to be some doubt raised by Judicial Member Britton’s comments in BQ, there may be some merit in revisiting the issue.

38 In doing so I have taken into account all the evidence and submissions presented by the parties. Having done so, I am in general agreement with the position argued by the Department. It is my view that Y’s case was correctly decided and should be applied.

39 I agree with the Department’s submission that, when interpreting a provision of an Act, a construction that would promote the purpose or object underlying the Act or statutory rule is to be preferred to a construction that would not promote that purpose or object. I also agree that it cannot be said that the purpose of the Privacy Act is to give a blanket right to privacy. Rather, the Privacy Act strikes a balance between a person's right to privacy and the need to preserve an agency's capacity to carry out its functions.

40 I accept the submission that the purpose of section 53 of the Privacy Act must be considered in the context of this balanced approach by the legislature. Its purpose is to confer on agencies the right to properly investigate the surrounding factual issues in the course of an internal review before that conduct is reviewed by the Tribunal. It also offers agencies the opportunity to resolve a matter at the internal review stage. Section 53(3)(d) specifically provides that an application for review must be made within six 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. In this way, an agency's exposure to a privacy complaint that is too old to be properly investigated is limited. This entitlement should be given due weight as part of the balance struck by the legislature.

41 I accept that this may result in an anomalous position that results from the absence of a power to review under section 55(1)(b) of the Privacy Act and the broad powers found in Chapter 5 of the ADT Act. However I am not persuaded by the argument with respect to the significance of the anomaly. While I accept that the interpretation urged by the Department would produce an inconsistency, it is my view that the legislature did not intend that the Tribunal should have the power to review the exercise of a discretion to refuse to accept an application for internal review, where the application is out of time.

42 I agree that if the legislature had intended to establish a regime for the review of late internal review applications, it would have been logical for it to mirror in the Privacy Act the detailed scheme provided for in the ADT Act. In the absence of such a provision, it is my view that the Tribunal does not have the jurisdiction to determine this matter.

43 The Privacy Act provides for applications for review to be lodged with a public sector agency. The evidence shows that MG made representations to the relevant Minister but failed to lodge the application in accordance with the legislation. I am inclined to the view that had the Tribunal jurisdiction to review the matter in issue, then MG’s representations would be relevant matters to be taken into account in determining whether a decision to not accept an out of time application was reasonable. Nevertheless, in the circumstances I am not satisfied that I am able to undertake this review or to take these issues into account. Accordingly the application must be dismissed.

Order

44 MG’s application is dismissed for want of jurisdiction.