NZ Commissioner of Police, NSW Police (GD)

[2005] NSWADTAP 61

Appeal Panel - Internal

CITATION:	NZ Commissioner of Police, NSW Police (GD) [2005] NSWADTAP 61
PARTIES:	APPELLANT NZ RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	059016
HEARING DATES:	27/10/2005
SUBMISSIONS CLOSED:	27/10/2005
DATE OF DECISION:	18/11/2005
DECISION UNDER APPEAL:	NZ v Commissioner of Police, New South Wales Police [2005] NSWADT 35
BEFORE:	Hennessy N - Magistrate (Deputy President); Higgins S - Judicial Member; Bolt M - Non Judicial Member
CATCHWORDS:	procedural fairness - statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	043221 & 043226
DATE OF DECISION UNDER APPEAL:	22/02/2005
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Privacy and Personal Information Protection Act 1998
CASES CITED:	Hutchinson v Director General Roads and Traffic Authority [2004] NSWADT 48
REPRESENTATION:	APPELLANT In person RESPONDENT R Burdick, solicitor
ORDERS:	Appeal from decision in File No 043221 is dismissed; Appeal from decision in File No 043326 is dismissed

REASONS FOR DECISION

Introduction

1 NZ, the appellant, has appealed against two decisions of the Tribunal dismissing her applications under the Freedom of Information Act 1989 (FOI Act) and the Privacy and Personal Information Protection Act1998 (PPIP Act). The application under the PPIP Act was dismissed because the Tribunal found that the appellant had not requested an internal review of the conduct about which she was complaining. Under the PPIP Act an application can only be made to the Tribunal after an internal review of the conduct has taken place or after the agency has had a sufficient opportunity to conduct an internal review: s 53 and s 55 of the PPIP Act. Similarly, the FOI application was dismissed because the appellant made the application to the Tribunal before requesting an internal review from NSW Police: s 34 of the FOI Act and s 53(2) of the Administrative Decisions Tribunal Act 1997 (ADT Act). With the parties’ consent this appeal was determined “on the papers” pursuant to s 76 of the ADT Act.

Privacy appeal

2 The appellant set out several grounds of appeal including breach of procedural fairness and misconstruction of the legislative provisions. The source of these errors, according to the appellant, was the Tribunal’s finding that she had not applied to NSW Police for internal review of the conduct when in fact she had applied for an internal review. Section 53(3) of the PPIP Act sets out the requirements for an internal review application. Such an application must be in writing and addressed to the agency concerned. It must also relate to conduct that the applicant became aware of in the previous six months, unless the agency extends that time. The appellant said that she applied for an internal review to Mr Owens and others prior to 29 July 2004 but she received no response to those applications. The appellant was not able to produce a copy of any document which she had written to NSW Police which amounts to an application for an internal review under s 53(3). The only relevant documents we could identify were general letters to NSW Police saying that she had requested “internal review” but never received it.

3 NZ sought to put further evidence before the Appeal Panel which was not available to the Tribunal. We have looked at that evidence with a view to determining whether or not it should be admitted in these proceedings. We have decided not to admit it in these proceedings for two reasons. Firstly, NZ had every opportunity to provide evidence in support of her application to the Tribunal. There is no suggestion that any of the material was not available to her at the time of Tribunal hearing. Secondly, even if there was some justification for admitting fresh evidence, the evidence is not relevant to any issue in these proceedings. In particular, there is nothing in that material which directly supports the appellant’s assertion that she applied to Mr Owens, or anyone else, for an internal review prior to 29 July 2004.

4 Section 55 of the PPIP Act allows a person to apply to the Tribunal for a review of conduct that was the subject of an application for internal review under s 53. The Tribunal made no error in finding that the appellant had not made an application for internal review under s 53. Neither was there any error in its ultimate conclusion that the application should be dismissed.

FOI Appeal

5 The Tribunal found that in March 2003, NSW Police made a determination in relation to an FOI application from the appellant. The Tribunal also made a finding of fact that no internal review was sought of that determination. On appeal, the appellant said that she did ask for an internal review but did not produce a copy of any correspondence from her to NSW Police requesting such a review. NSW Police say that after an exhaustive search of its records, they were unable to locate any correspondence from the appellant requesting an internal review of the March 2003 decision. Requesting an internal review is a procedural step that must be undertaken before applying to the Tribunal for an external review of an agency’s decision. (See s 34 of the FOI Act, s 53 of the ADT Act and Hutchinson v Director General, Roads and Traffic Authority [2004] NSWADT 48 at [35].) In those circumstances, the Tribunal did not make an error in dismissing the appellant’s application.

Orders

1. Appeal from decision in File No 043221 is dismissed.

2. Appeal form decision in File No 043326 is dismissed.