Morgan v Director- General, Department of Education and Training & Minister for Education and Training
[1999] NSWADT 91
•28 September 1999
Set aside by Appeal:
Set aside by appeal on 17/3/2000 - Remitted back to Tribunal
CITATION: Morgan v Director- General, Department of Education and Training & Minister for Education and Training [1999] NSWADT 91 DIVISION: General APPLICANT: Morgan RESPONDENT: Director-General, Department of Education and Training (First Respondent)
Minister for Education and Training (Second Respondent)FILE NUMBER: 983034 & 993018 HEARING DATES: 05/31/1999 SUBMISSIONS CLOSED: 05/31/1999 DATE OF DECISION: 28 September 1999 BEFORE:
K P O'Connor DCJ - PresidentPRIMARY LEGISLATION: Freedom of Information Act 1989 APPLICATION: Review of decision to refuse to amend documents - MATTER FOR DECISION: Principal matter REPRESENTATION: Applicant:
Respondent:
In person
P Singleton, solicitor, instructed by the Crown SolicitorORDERS: 1.Application No 983034 - relating to the Department
As to the parts of the two documents in dispute that were referred to hearing, the decisions under review are affirmed subject to the following direction:
That in the case of the attachment to the incident report (referred to as document 4 in the Reasons for Decision) the following notation be attached to the two statements in issue:
"These comments represent merely the perceptions held by the author as to the conduct of the applicant in the particular circumstances at that time and have no greater significance. This notation has been added at the direction of the Administrative Decisions Tribunal."
2. Application No 993018 - relating to the Minister
As to the parts of the two documents in dispute that were referred to hearing, the decisions under review are affirmed.
1 The Tribunal has before it two applications for review of refusals of requests to amend various records released to the applicant under the Freedom of Information Act 1989 (‘the Act’). The applications, made pursuant to s 53 of the Act, involve a single set of circumstances and have been dealt with together.2 The applicant is Ms Morgan (‘the applicant’), a parent whose son, R, then 5 years old, was enrolled in the Bourke Street Primary School, Surry Hills in the early months of 1996. The respondent to the first application is the Department of Education and Training, and to the second the Minister for Education and Training. (For convenience, the parties will generally be referred to in these reasons as ‘the applicant’ and ‘respondents’ with separate references to ‘the Department’ and ‘the Minister’ where appropriate.)
3 The application for review in relation to the Department’s records was made on 14 December 1998, and in relation to the Minister’s records on 21 January 1999. There was no internal review sought in respect of the Department’s decision. An internal review was sought in the case of the Minister’s decision, but there is no such right under the Act: as to which, see further para 15 below.
4 In each case the decisions under review were made pursuant to s 43 of the Act. In the Minister’s case there is a letter formally responding to the applicant’s request for amendment. In the Department’s case, the position is that the applicant claimed that the Department had failed to make a decision, giving rise to a deemed refusal under the Act (see s 43(2)). The Department contended that it did not have sufficient particulars, conforming to s 40 of the Act, but it did not object to the application proceeding before the Tribunal. The Tribunal’s powers of determination are found in the Administrative Decisions Tribunal Act 1997 (‘the Tribunal Act’): s 63.
5 This decision deals with the dispute between the parties as to the accuracy of parts of four documents. Other disputes between the parties were dealt with by preliminary conference pursuant to s 74 of the Tribunal Act.
6 Background to Applications: an Outline: The circumstances which led the Department (both at school level and at central level) and the Minister’s office to generate a large number of documents arose from the applicant’s pursuit of concerns that she had over various aspects of practices at the Bourke Street Primary School.
7 In outline the history is as follows. In February 1996 the applicant enrolled her son, R, then 5 years year old in the kindergarten year at the school. She made various requests to the school principal as to practices to be adopted in relation to her son. These went to such matters as the kind of food to be served by the school canteen and the use of cotton clothing. The principal encouraged her to join the canteen committee, which she did.
8 A few days into the school year, 8 February 1996, there was an incident involving her son and one of the other parents. The applicant said her son was accosted by a substance-dependent parent. She made a complaint to the principal over the incident.
9 She also had concerns as to the nature of the voluntary religious studies teaching provided by the school. The principal permitted her to conduct voluntary scripture classes relating to those non-Christian beliefs known as pagan beliefs. She explained in her evidence at hearing the centrality of her religious beliefs to her concerns with the operation of the school. One of her concerns over the documents that were the subject of her original FOI application had to with assertions that she held Satanic beliefs and was a Satanist. She emphasised that her beliefs did not involve the recognition of ‘Satan’. She said that she was a Druid and held the beliefs of that group.
10 Within months she had become dissatisfied as to what she saw as the principal’s failure to change practices in the school in relation to canteen food supplies and clothing choices. She also had concerns in relation to the financial affairs of the canteen. She withdrew her son from the school. In late May 1996 R was removed from the school roll. In June 1996 she raised her concerns over school policies and practices with the Department. It obtained a briefing from the principal and responded by letter dated 14 June 1996.
11 The applicant was angered by the reply, which she received on 19 June. She telephoned the principal on the morning of the 20th expressing her concern. She (with R) visited the school that afternoon and sought to make contact with teachers during class-time. Following this incident, the principal obtained urgent advice as to how she might formally be excluded from the school premises. By letter delivered personally to her later that day the school notified her that she was excluded from the school grounds and that any further entry would be treated as a trespass. The applicant entered the grounds of the school the next day, she said in order to discuss the possibility of R being permitted to attend a school activity (a pyjama party), even though she had formally withdrawn R from the school. Police were called and she was arrested. She was later released and no further action was taken.
12 Initial Request, 1996: On 21 June 1996 she lodged with the Department the Freedom of Information (FOI) a request that has now given rise to these proceedings. Subsequently she made various representations in relation to the way in which she had been treated both to the Department and to the Minister. She also made complaints to the Ombudsman’s office, which have been investigated. The documents generated by these representations were treated as being within the scope of the FOI request.
13 Reply and Requests for Amendments: In October 1998 she was provided with copies of numerous file documents from the Department’s and Minister’s office files. Access in full was granted to a large number of documents referring to her. (After the hearing concluded two further documents, being written statements made by members of the teaching staff, were provided to her, following searches conducted by the principal after he gave evidence: under cover of letter from Department to the applicant dated 8 June 1999.) On 14 October 1998 she lodged 21 pages of material setting out, as she saw it, requests for amendment pursuant to Part 4 of the Act relating to the Department’s records. On 26 November 1998 the applicant made a 6 page request for amendment of the Minister’s records.
14 Amendment Rights: The Act gives a person to whom access to an agency’s or Minister’s documents have been released a right to apply for the amendment of the records:
15 Where a request for amendment is made, an agency or Minister is required to decide the matter within 21 days, otherwise the failure to make a decision constitutes a ‘deemed refusal’: s 43(2) (agency); s 51 and s 43(2) (Minister). In the case of an adverse decision on an amendment request by an agency the applicant may request internal review: s 47. Minister’s decisions in relation to both access and amendment are not subject to internal review: see s 38 and s 51 generally making applicable the procedures binding agencies but excluding internal review.
· if the document contains information concerning the person’s personal affairs;
· if the information is available for use by the agency in connection with its administrative functions (or the Minister in connection with the Minister’s administrative functions), and
· if the information is, in the person’s opinion, incomplete, incorrect, out of date or misleading.
See s 39 (agencies’ records), s 48 (Minister’s records).
16 Absence of Internal Review by Department: On 17 November, a few days after the 21 day period had passed, the applicant advised the Department that she regarded the absence of a reply as a deemed refusal, and applied for internal review. As noted the Department contended that, in its view, the request for amendment had not conformed to s 40. It is not clear when it first conveyed that opinion to the applicant. In relation to the request for amendment of the Minister’s records, the applicant received a reply dated 4 January 1999 and lodged a request for internal review. She received no response. (As noted, there is no right to internal review in respect of amendment requests to Ministers.)
17 Normally an application can not proceed if there has been no internal review and there is such a right: see Tribunal Act, s 55(1)(b). The Tribunal may permit an application to proceed in the absence of internal review where “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”: s 55(2)(c).
18 There was no objection from the Department to the matter proceeding without actual internal review and no active pursuit by either of the respondents in relation to their contention as to the adequacy of the applicant’s requests for amendment (a matter to which I return at paras 41-42 below). The absence of internal review by the Department was briefly alluded to at the directions hearing on 1 March 1999.
19 The norm set by the Act is that there be internal review, a practice adherence to which is vital in procuring good standards of primary decision-making. But given the long and complex history of this matter, the attitude of the parties and the desirability of final resolution of the dispute, I am satisfied that in this particular case it is acceptable for the dispute to proceed to the Tribunal without internal review. I have also taken into account that in the circumstances of this case, the exercise of the right of internal review did not have the potential to dispose completely of the dispute because the right is only available in relation to Departmental records.
20 Personal Affairs Information: There were no submissions as to whether the documents were of the kind to which the Act’s amendment rights attached, namely documents containing information relating to the person’s “personal affairs”: ss 39, 48. The respondents accepted that the documents should be treated as containing information concerning her personal affairs, and that the documents related to their respective administrative functions. It is clear that the documents concern their respective administrative functions.
21 As to the issue of whether the documents relate to the applicant’s personal affairs, I am inclined to consider that in general they do, in that they have their origins in representations by her to the school as to issues of concern to her as a parent. The position may be more arguable as to documents that relate to her representations and conduct when it became more public in character, but as this question was not pursued by either party, I will proceed on the basis that all the documents in issue are properly subject to Part 4 of the Act.
22 Reasons for seeking review: In her applications the applicant gave as her reasons for seeking review, in so far as they related to matters relevant to the Act, as failure to adhere to the Act that the respondents had breached Part 4 of the Act and failure to reply to her requests for amendment; and that the documents released were incorrect and misleading.
23 History of Matter before the Tribunal: With the agreement of the parties, the Tribunal has dealt with the two applications together. The applications have been the subject of several directions hearings, a two-day preliminary conference constituted pursuant to s 74 and a one day hearing in relation to the issues not resolved by preliminary conference which gave rise to a determination. The matters not resolved by the preliminary conference were referred for hearing. Part of the contents of each of four documents remained in dispute. The passages in dispute are set out at para 44 below.
24 This case raises the issue of the extent to which it is appropriate for an applicant to seek through the mechanism of a FOI amendment request to revisit the events recorded in documents, to have the Tribunal make findings on material questions of fact as to what precisely occurred and have the records amended as appropriate in light of its findings.
Role of Tribunal in dealing with Amendment Application
25 The correction of statements relating to simple objective facts, such as name, address, date of birth and the like, does not represent a difficult task for the processes of inquiry of a tribunal.
26 But the position is more difficult where the dispute relates to differing versions of events, where there the occurrence of the events is not an issue. For example in this case there was substantial agreement as between the principal (Mr Porteous) and the applicant over the occurrence of key events such as her representations in relation to the food and clothing practices to be adopted in relation to her son, her concern over the management of the school canteen, her involvement in education of children in relation to pagan beliefs, the steps taken to exclude her from the school premises and her subsequent re-entry. In most instances her complaint relates to the accuracy and fairness of the depiction of her conduct as given in the official records, in particular the adverse references to her temper, behaviour and the language used.
27 One decision providing guidance on the course of inquiry to be pursued by a tribunal in amendment of records cases is Re Cox and Department of Defence 20 ALD 499 by Todd DP where he said:
“What I now proceed to do is to consider each document separately in the light of the evidence which I have set out and to state whether any or all should be found to be incomplete, incorrect, out-of-date or misleading, and whether any notation should be added to the record accordingly. … These problems arise because the applicant has been able to refer to other evidence sufficiently cogent to enable the tribunal, and indeed in my opinion to require it, to find that the subject documents are either incomplete, incorrect, out-of-date or misleading, or a combination or one or other of these criteria, unless that additional evidence is placed on the record and cautionary notations placed on the subject documents. This is partly to be achieved by the making of individual notations and partly by placing on the relevant files copies of the Decision herein and of these Reasons for Decision …”.
28 A case which illustrates some of the difficulties facing a tribunal in dealing with an amendment of records application is Re Warren and the Department of Defence (AAT, 22 December 1993, File No N92/621, unreported).
29 In that case the applicant who became an officer in the Australian Army in 1966 resigned his commission in 1981 when his superior officers found that his response to a notice to show cause why his commission should not be terminated was not acceptable. Subsequently he obtained access to the internal records that had given rise to the disciplinary action against him. He disputed the contents of these records which included material of which he had been previously unaware. The matter reached the Commonwealth Administrative Appeals Tribunal (‘the AAT’) in 1993, some 12 years after the official records had been created. The AAT noted that the case was “in many ways a tragic one as it concerns the destruction of a career” (p2). The AAT reviewed the records and received evidence over six days.
30 While the AAT rejected the applicant’s submission that there had been a conspiracy against him involving three senior officers, it made a number of adverse findings in relation to particular matters.
31 For example, at one stage in the disciplinary process the applicant had sought to use an internal grievance procedure known as a ‘redress of wrongs’ procedure. Advice was given to the relevant superior officer as to the applicant’s rights in this regard. It was found to be inaccurate and misleading by the AAT, giving rise to an order that an annotation be placed with the relevant memorandum explaining the deficiencies of the advice.
32 As to opinions about the applicant’s ability made by two senior officers, the AAT did not intervene. It made the following observations:
“The comments by [the officers] are not what the applicant would desire but they are opinions which were held by those officers at the time. They should not be deleted, neither is there sufficient evidence adduced to persuade the Tribunal that the factual bases for them were incorrect so that some annotation should be made upon the document in question.”
33 But in the case of the comments of a third officer it had a different view. It criticised the ‘extraordinary comments’ that the applicant’s ‘reputation is so poor that he would not receive a terribly objective assessment’. It noted that ‘no explanation’ was given for these comments, and they can be characterised as misleading and incomplete. The AAT directed a notation be placed with the comments noting that they were not supported by any evidence.
34 In relation to another item in dispute it noted that the applicant had not been given at the time a fair opportunity to read and make comments on an adverse internal report about him. The AAT stated at p38:
“It is clear that by forwarding this correspondence to [a commanding officer] without the applicant being able to sight, initial and make representations upon it, the applicant was improperly deprived of a chance that was fairly open to him to make his own submissions as to why the report ought not to have been accepted at face value.”
35 The AAT then addressed the practical difficulties of revisiting events that were long past, at pp38-39:
“The Tribunal has some difficulty in dealing with Item 4. The applicant has challenged its factual basis, yet to resolve that question would require a lengthy hearing with witnesses attempting to recollect events some 13 years ago. Clearly the Administrative Appeals Tribunal has neither the time not the resources to undertake this task, nor should the Respondent have to come before the Tribunal and be put to the expense of producing witnesses and seeking to rebut the minutiae of events which are peripheral at best and long past.
The best the Tribunal can do is to take a broad butt approach and where incompleteness, error, or outdated or misleading information has been demonstrated, act to rectify same.”
36 Ultimately the AAT directed that at six points in the official records substantial notations should be incorporated to overcome incorrect or misleading statements. In one instance the AAT found that an adverse comment was unsupported by any evidence. In four instances it found contents to be incomplete and misleading. In one instance it found contents to be incorrect. In some of the instances mentioned, it also found that there had been failures to follow proper procedures or to accord a fair opportunity to the applicant to respond to material.
Burden of Proof
37 FOI legislation seeks to promote the disclosure of information to citizens: see generally Commissioner of Police v District Court (Perrin’s case) (1993) 31 NSWLR 607 (CA). It follows that in proceedings before the Tribunal Ministers and agencies should bear the burden in justifying non-disclosure. This issue is addressed directly by the Act in s 61:
“In any proceedings concerning a determination made under this Act by an agency or Minister, the burden of establishing that the determination is justified lies on the agency or Minister.”
38 This general position does not distinguish between determinations relating to access and those relating to amendment. Although the ultimate burden of establishing justification for a determination rests with the agency or Minister, where the agency or Minister has released the document and an applicant seeks amendment of it, it seems appropriate that the applicant bears an initial or preliminary burden to provide evidence in support of the application for amendment. I agree with the approach taken by the Information Commissioner of Queensland in Doelle v Legal Aid Office , Decision No 93005 (24 November 1993) at [18]:
This is also the position in other jurisdictions (see e.g. Freedom of Information Act 1982 (Cth) s 61, Freedom of Information Act 1989 (ACT) s 71 and Freedom of Information Act 1992 (Qld) s 81, each of which expressly place the onus on the respondent agency or Minister).
“Pursuant to s 81 of the FOI Act, [the agency] has the onus of establishing that its decision is justified. … [W]hile on a review … the ultimate legal onus remains on [the agency], a practical or evidentiary onus shifts to [the applicant] to provide evidence to support his entitlement to relief … on the basis that the documents in issue contain information that is inaccurate, incomplete, out-of-date or misleading.”
39 This question has also been examined by the Australian Law Reform Commission in its report: Open Government: A Review of the Federal Freedom of Information Act 1982 (1995). At [12.22] it observed:
“While an agency has a duty to consider an application for amendment, the Review considers that the onus of satisfying the agency that there are grounds for amendment rests largely on the applicant. The agency may make inquiries and take action to satisfy itself about those grounds, but it should only be required to do whatever is reasonable in the circumstances. If an applicant seeks review of a decision refusing to amend a document the agency must justify its decision. It does not have to prove that its record is accurate.”
(These observations were made in the context of a discussion of whether amendment applications might have the potential to divert unreasonably agency resources.)
Scope of the Respondents’ Evidence40 In closing submissions counsel for the respondents explained the limited course his clients had chosen to follow in providing evidence. He referred to his clients’ concern to avoid having an adverse inference drawn from its decision not to call the various teachers affected by the events that gave rise to the documents. Consequently an affidavit from Mr Porteous was tendered at hearing - an affidavit prepared in March 1999 for the purpose of resisting the enforcement of summonses addressed to various teachers. Counsel explained that the sole purpose of the affidavit was to address the possibility of an adverse inference being drawn from the non-appearance of the teachers. The affidavit referred to such matters as the effect on teaching programs and school budgets if the teachers were required to give evidence, as well as broader social impacts especially on their morale.
41 It is ultimately a matter for the judgment of respondents as to the extent of the evidence they call in order to meet applications for amendments of records. That judgment would include, presumably, some assessment of the apparent strength of an applicant’s evidence. Consequently it is important that applicants seeking amendment properly identify the records in dispute and in what respects the records are considered to be incorrect, incomplete, out-of-date or misleading; and where the information is considered to be incomplete or out of date, the applicant should include the information necessary to complete or update the record. An applicant’s responsibility in this regard is dealt with by s 40 and s 49 of the Act. This application was brought by a litigant in person and was affected significantly by lack of clarity on these matters.
42 It would also assist the Tribunal if an applicant provided the text of the amendment sought and the method of inclusion of the amendment in the records, such as by deletion or by annexure.
43 Clearly the Tribunal needs to set manageable bounds on the scope of the evidence required in records-amendment applications of agencies, especially those where there is a long history and many officers and others potentially involved. While there may be circumstances in which an adverse inference should be drawn from the failure to produce evidence of officers of an agency that a respondent has declined to call, in light of the reasons which follow, this is not such a case.
Matters Referred for Hearing
44 Part of the contents of four documents were ultimately referred for hearing.
Minister’s document: Letter to the applicant from the Minister for Education dated 14 August 1996, fourth paragraph:
Document 1
“Your reference to an incident at the school canteen on February 8, 1996 was investigated and a report provided to you by the Principal, Mr Peter Porteous.”
Minister’s document: Memorandum from Dr Alan Laughlin, Assistant Director-General, Department of School Education, undated, prepared in relation to Document 1, dot point four:
Document 2
“Relations deteriorated when [the applicant] distributed a letter written to her by George Green, ADG, in response to her complaints with her comments on it, within the school grounds”.
Department’s document: Incident Report (hand-written) dated 21 June 1996 written by Mr Peter Porteous, Principal, Bourke Street Primary School, passage set out below:
Document 3
“she entered the school premises at 2.30 [on 20 June 1996] with the enclosed paper and entered classrooms shouting about myself and the school. She was very distressed and teachers who received the pamphlet were shocked and upset by her behaviour.”
Department’s document: Attachment to Incident Report (type-written) written by Mr Porteous dated 24 June 1996, first two dot points on 2nd page:
Document 4
“- Her increasing verbal aggression and irrational behaviour has caused me a great deal of concern for the safety of the staff and students of the school
The Evidence
- Following an incident at Plunkett St a few weeks ago I was most concerned that there be no similar incident at Bourke St”.
45 Evidence at hearing: At hearing oral evidence was given by the principal in 1996, Mr Peter Porteous, in relation to the events of 1996 relating to the applicant and referred to in the documents remaining under consideration. Oral evidence was also given by the applicant and by her son, R, now eight years old.
46 The attendance of Mr Porteous, the principal, was procured by summons issued on behalf of the applicant who sought to lead evidence in support of her case from a witness responsible directly or indirectly for the authorship of some of the documents to which she objected.
(1) The Minister’s letter of 14 August 1996, fourth paragraph
47 This letter contained the Minister’s reply to a letter from the applicant in which she complained over the principal’s alleged failure to follow proper procedures in dealing with the incident of 8 February 1996 when her son had, she said, been accosted by a substance dependent parent.
48 The complaint of failure to deal adequately with the incident was the subject of an inquiry by the district inspector, Mr Bob Smith, to the principal which gave rise ultimately to a written reply dated 17 July 1996 from Mr Porteous. In that reply he said:
“I vaguely remember the incident [the applicant] refers to on February 8th and remember investigating it and verbally reporting to [the applicant] my findings. She seemed happy with the outcome as to the best of my memory there was nothing in the allegation as it seemed to be some sort of misunderstanding but I cannot be sure of the details as it was six months ago. As to her comments about the parent concerned I find it very distressing to read abuse of another parent who had volunteered her services to the school and was making an effort to get her life back in order after a substance dependence problem”.
49 This information gave rise to the paragraph in the Minister’s letter to which the applicant objected.
50 The applicant contended that this note was inaccurate in that she did not receive a verbal report; and that it was inaccurate or misleading in that there was no evidence of an investigation. She requested the Tribunal to annex a statement to the document to that effect.
51 In that regard she referred to the official procedure for resolution of complaints by parents and other members of the school community about a school matter. The procedure in operation at the time was the subject of a circular, 94/037, by the Director-General of School Education. That circular set down a procedure to be followed in respect of the receipt of formal complaints. It noted that many expressions of concern in the school community need never take the form of a formal complaint. It noted that principals and teachers are available to discuss and resolve these concerns in more informal ways.
52 It is clear from the written memorandum and his evidence at hearing that Mr Porteous regarded the complaint made by the applicant on 8 February 1996 as one appropriate to be dealt with at school level. He did not regard it as a formal complaint to which the above policy might attach. Clearly he regarded the steps he took at that time as constituting a sufficient investigation of the matter.
53 I accept the submission of counsel for the respondents that Mr Porteous’s evidence in this regard was uncontradicted. I also accept that aspects of the applicant’s evidence tend to support Mr Porteous’s account. Counsel noted that Mr Porteous said that he had consulted another child’s grandmother. That woman was the mother of the alleged assailant. She offered to apologise for her daughter’s conduct. This is consistent with the applicant’s evidence that she received an apology from the grandmother. The applicant’s evidence therefore lends support to Mr Porteous’s account, as does her reference to a conversation with Mr Porteous about the incident a week later.
54 I am satisfied that the reference in the Minister’s letter to an investigation simply referred to the steps which Mr Porteous took on the day of the complaint and within the following few days. I am satisfied that Mr Porteous engaged in the round of inquiries of persons affected by the complaint to which he referred in evidence, and that he verbally reported his conclusions to the applicant. I am also satisfied that he understood that the matter had been dealt with to her satisfaction, and need not be taken any further.
55 The Minister’s letter is not inaccurate or misleading. The case for amendment is not established.
(2) The Assistant Director-General’s briefing note to Minister, dot point four
56 As noted earlier in this memorandum Dr Laughlin noted that -“Relations deteriorated when [the applicant] distributed a letter written to her by George Green, ADG, in response to her complaints, with her comments on it, within the school grounds”.
57 The applicant contested the use of the term “distribute” to describe what she did. She said she only handed it to a few teachers, which was not consistent with the connotation of wide circulation to children, parents and teachers that might be attached to the words “distributed … within school grounds”.
58 She contested what she saw as the suggestion that her conduct (as distinct from the school’s) was the cause for relations deteriorating. She requested an annexed statement putting a fairer representation of these matters.
59 As to the issue of deterioration in relationships, she referred to a written complaint that she had made to the principal in April 1996 over her son, she said, being criticised by the principal and teachers for not wearing the school uniform. She did not wish her son to wear the school uniform because it was made of synthetic fibres, a matter over which she had expressed concern when enrolling him.
60 I am satisfied from Mr Porteous’s evidence that when he received the April complaint he had made inquiries, by asking her son about it and speaking to teachers who assured him that they had not been critical. I accept Mr Porteous’ evidence that he was unconcerned about whether The applicant’s son wore the school uniform, and acknowledged her desire only to have her son wear natural materials.
61 On 6 June 1996 the applicant sent a letter to the Assistant Director-General who at that time was Mr Green. It expressed a series of concerns relating to the adequacy of health, hygiene and safety practices at the school, mainly focusing on the type of food served by the school canteen. Mr Green replied by letter dated 14 June 1996. His reply was formulated after receiving a detailed briefing note dated 11 June 1996 from Mr Porteous.
62 The tone of the briefing note is constructive, and provides information on school practices on each of the concerns raised. Mr Porteous emphasises his desire to have the school community function in an inclusive and collaborative way. He notes the difficulty of continuing to run the canteen with voluntary assistance which, it would appear, has depended over many years on the services of two women, now in their seventies. He notes that he has discussed these issues on many occasions with the applicant. He noted that she had withdrawn her son so that she could engage in home schooling.
63 In his reply Mr Green noted that the school canteen committee, of which the applicant was a member, was moving to introduce a new menu to eliminate undesirable items. He also responded to her other expressions of concern in a courteous way.
64 It is clear that by early June 1996 there had been a good deal of interaction between the applicant and the principal. Her concerns were, I consider, being handled by the principal and the Department in reasonable way.
65 I am satisfied that the reference to “relations deteriorating” ought not be qualified in the way suggested by the applicant.
66 As to the extent of distribution of the letter received from Mr Green, the event which occurred on 20 June 1996, I accept the applicant’s evidence that the letter was only handed to a few teachers. While this was not a widespread distribution, it was not unreasonable for Dr Laughlin to describe her conduct in the way he did. Dr Laughlin was engaged in writing a short briefing note for a Minister. This was an adequate depiction of her conduct for that purpose.
67 The case for amendment is not established.
(3) Incident Report (hand-written), passage in dispute
68 After receiving Mr Green’s reply the applicant visited the school. Mr Porteous gave evidence in relation to this visit. This visit occurred about 2.30 pm on 20 June 1996. The passage in dispute states:
“she entered the school premises at 2.30 [on 20 June 1996] with the enclosed paper and entered classrooms shouting about myself and the school. She was very distressed and teachers who received the pamphlet were shocked and upset by her behaviour.”
69 In his evidence at hearing, evidence given almost three years later, Mr Porteous described the visit as follows (transcript, 20):
“Well, she came into the front office in a highly agitated state and she had that letter and it was underlined I think with green pencil and there were - there was wording on it and my secretary, Margot Cooper, asked her what she wanted and she just went past her and went into classrooms with this handing it to teachers. I think Peter Balding’s classroom which was the kindergarten classroom and also Margaret Deasy’s classroom.”
This description is in broadly similar terms to that contained in the passage in issue from the hand-written incident report.
70 The applicant objected to these descriptions on the basis that she did not shout, or behave temperamentally and that they imply that she engaged in a “mass invasion”, when she says she entered two class-rooms after being invited to do so by the teachers. She wished to have a statement annexed to the document which more accurately explained what occurred.71 In response to questions from the applicant, Mr Porteous agreed that he had not seen her enter his office, and that his knowledge, including the material in the incident report, was based on reports from the persons named. The applicant sought to reject his accounts on the ground that they were ‘hearsay’. Clearly the document in issue, the incident report, was created by Mr Porteous in the performance of his duties as principal. Not infrequently official reports prepared by a senior officer, such as a school principal, will be based on input received from others. This does not make the report inherently objectionable.
72 I am satisfied from Mr Porteous’s evidence that the documents he prepared involved a genuine attempt to portray accurately events as they had been reported to him. While the words chosen by Mr Porteous may be offensive to the applicant, they are his attempt to provide a fair representation of events as reported to him by staff.
73 As to the use of the term ‘shouting’, counsel for the respondents acknowledged that the only direct evidence as to the way she spoke on that occasion was from the applicant and her son. If the Tribunal was inclined to accept that evidence, then counsel indicated that the substitution at the relevant point of the word “communicating” for the word “shouting” would be acceptable to the Department.
74 As to her son’s evidence, I have given it no weight, as it consisted entirely of ‘yes/no’ answers to leading questions from a parent relating to events three years’ past when he was only five.
75 As to whether I should accept the applicant’s evidence, I agree with the submissions of counsel that it is appropriate for the Tribunal to have regard to its observations of her temperament and demeanour. I am satisfied from my observations of her at the hearing that in circumstances of pressure the applicant might be inclined to communicate in a way which some might perceive as shouting, though that may not be her aim or the impression she is wishing to give. I also refer to my observations in connection with the next document as to her proclivity to use aggressive language. I also consider that it is likely that it would have been necessary for her to communicate in a way that attracted the attention of teachers who were busy and not expecting her arrival at their door.
76 I am satisfied that Mr Porteous sought to describe by his reference to “shouting” a form of agitated conduct designed to attract attention reported to him by staff.
77 The case for amendment is not established.
(4) Attachment to Incident Report, first two dot points
78 Dot Point One: The applicant objected to Mr Porteous’s reference to her “increasing verbal aggression and irrational behaviour”. She wished to have a statement annexed to the document saying that these comments were not true and that they were rejected.
79 While these assessments could be said to be factual in character, they are better understood as attempting in a short way to convey Mr Porteous’s perceptions about the applicant’s behaviour. They are essentially statements relating to Mr Porteous’s thought processes, and are not readily amenable to amendment.
80 It is clear from the material released, especially the letters written by the applicant, that she is often inclined to use aggressive language. In the course of these proceedings she frequently made strong personal attacks on various officers of the Department as well as respondents’ counsel. Her closing submissions to the Tribunal referred to people who felt powerless and unsupported by the justice system being driven to violence.
81 In relation to the use of the second part of the comment were he refers to her ‘increasing … irrational behaviour’, Mr Porteous referred in his evidence to several matters:
82 Mr Porteous’s use of the comment in issue has that context. Having regard to his explanations of the context that gave rise to the use of the term, I am not satisfied that the contents of the first dot point warrant amendment. However I accept the applicant’s submission that the use of the term ‘increasingly irrational’ to describe her may be seen by others using the file as having some greater status than a general perception related to a particular series of events.
· the applicant’s conduct on the afternoon of 20 June 1996 in approaching teachers during class-time (and accepting for the moment her evidence that she only entered the class-rooms with the relevant teachers’ permission);
· her conduct the next day, 21 June, in re-entering the premises after being formally excluded, thereby exposing herself to police action - all occurring in circumstances where she had formally withdrawn her son from the school;
· her history of expressions of concern that he had received from teaching staff;
· the extremity of the applicant’s language in relation to the risks children faced from wearing synthetics (referring to her son wearing cotton walking through flames while others in synthetics failed to survive) and eating canteen food (referring to them being poisoned);
· and the placement by her of notices in the street-facing window of her home about the issues she had raised.
83 The second dot point: This comment contains a reference by Mr Porteous to the incident at Plunkett Street. It is listed as a factor that influenced Mr Porteous in the handling of the applicant’s behaviour affecting the operation of the school.
84 The applicant regarded the reference to an ‘incident at Plunkett Street’ as one likening her conduct to that of the parent involved in that incident. The incident occurred at the Woolloomooloo Primary School, and involved a principal being severely assaulted by a parent.
85 I am satisfied from his evidence that Mr Porteous was not seeking to suggest that the applicant would behave in such an extreme way, but that it merely sought to reflect a factor in Mr Porteous’s mind at the time of writing the memorandum.
86 Notation: I am not satisfied that a case for amendment has been established in relation to the comments contained in the two dot points. But there is a possibility that the comments might be construed as having more significance than merely being a record of perceptions and thereby mislead. To guard against that result, I am disposed to direct the Department to add a notation to the record that the comment contained in each dot point represent merely a perception held by Mr Porteous as to the conduct of the applicant in the particular circumstances at that time and has no greater significance.
Determination
87 Application No 983034 - relating to the Department
As to the parts of the two documents in dispute that were referred to hearing, the decisions under review are affirmed subject to the following direction:
That in the case of the attachment to the incident report (referred to as document 4 in the Reasons for Decision) the following notation be attached to the two statements in issue:
“These comments represent merely the perceptions held by the author as to the conduct of the applicant in the particular circumstances at that time and have no greater significance. This notation has been added at the direction of the Administrative Decisions Tribunal.”
The notation should then go on to refer to this decision and where it can be read.
88 Application No 993018 - relating to the Minister
As to the parts of the two documents in dispute that were referred to hearing, the decisions under review are affirmed.
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