Saunders v Department of Communities
[2011] QCAT 533
•25 October 2011
| CITATION: | Saunders v Department of Communities [2011] QCAT 533 |
| PARTIES: | Raymond Saunders |
| v | |
| Department of Communities |
| APPLICATION NUMBER: | GAR173-11 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 25 October 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Application for review is dismissed. |
| CATCHWORDS: | REVIEW OF AN ADMINISTRATIVE DECISION – where decision maker made a notation on information held about the applicant – where applicant not satisfied with decision – where no jurisdiction in tribunal to conduct review of decision – early end to proceedings Information Privacy Act 2009, s 74, Schedule 5 |
APPEARANCES and REPRESENTATION (if any):
The hearing was conducted on the papers in the absence of the parties under section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr Saunders had resided in a property at Noosa Heads in 2001. He was at the relevant time a tenant of what is now known as the Department of Communities. Mr Saunders had conducted music tuition for guitar students from his residence and he was informed that to do so was a breach of the terms of his tenancy.
The Department applied in 2001 to the Small Claims Tribunal for an order to terminate the tenancy. In the application form to that tribunal, the Department set out details of the factual basis for the application by using, where relevant, the following words: “Queensland Housing drew Mr Saunders’ attention to section 45.3(b) of the special terms and conditions of the tenancy agreement by letter on the 7th June 2001, a Notice to Remedy Breach was issued on 2nd July 2001 for related activities……”.
In February 2011 Mr Saunders applied to the Department under the Information Privacy Act 2009 to amend certain information contained in the application to the Small Claims Tribunal. Mr Saunders sought to amend the information to replace 7th June 2001 with 28th May 2001.
A decision maker at the Department considered Mr Saunders’ application and by way of amendment added a notation to the information on the Small Claims Tribunal form. The notation stated that the original information on the form was inaccurate and then set out further information as to the date and content of the relevant steps taken by the Department leading to the application being made to the Small Claims Tribunal.
Mr Saunders was not satisfied with the decision of the Department on his application made under the Information Privacy Act 2009. He filed an application in QCAT seeking to review that decision. The Department has sought an order dismissing the review application on the basis that QCAT has no jurisdiction to conduct a review of the decision.
Mr Saunders has provided submissions against the dismissal of the application for review. In essence he submits that QCAT has jurisdiction as the Information Privacy Act 2009 is one of the enabling Acts that provide jurisdiction to QCAT.
He is partially correct in that submission. The Information Privacy Act 2009 does provide jurisdiction for specified matters to be conducted by QCAT and in that sense is one of the enabling Acts for QCAT. For the reasons discussed below, it does not however provide QCAT with jurisdiction about the type of decision that Mr Saunders seeks to have reviewed in this case.
Section 74 of that Act sets out what a decision maker can do in response to an application to amend information. The options include making an appropriate notation to the information in question. This option was followed in the case of Mr Saunders.
There is provision in the Act for reviews to take place of reviewable decisions made under the Act. The total scope of what is a reviewable decision is set out in schedule 5 of the Act. On examination of schedule 5, there appears to be no mechanism in the Act for a person to seek either an internal or external review of a decision to make a notation to information.
This situation arises because that particular type of decision does not come within the scope of a reviewable decision. It appears to be the situation that the decision in question is not able to be challenged by Mr Saunders. The right to amend information is a right provided by statute and the legislature has decided the limits to be applied to the exercise of that right. QCAT cannot expand those limits.
Furthermore, there is no power in the Act permitting a person to seek a QCAT review of a decision to make a notation. Under sections 17 and 18 of the Queensland Civil and Administrative Tribunal Act 2009, QCAT’s review jurisdiction must be conferred by an enabling Act. QCAT can only exercise the specific jurisdiction properly conferred on the tribunal. It does not have general jurisdiction over all decisions made under the auspices of an enabling Act but only over specific decisions relevant to a specific conferred review power.
I am satisfied that no jurisdiction has been conferred on QCAT to conduct a review of the decision made by the Department on 23 March 2011 to make a notation on the information in question. The fact that the decision was made under one of QCAT’s enabling Acts is not sufficient to provide jurisdiction in this case to QCAT. The enabling Act confers jurisdiction on QCAT for other types of decisions but not for the decision to amend by way of making a notation to the information in question.
Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 gives QCAT power to bring a proceeding to an early end if the tribunal considers that an application is misconceived or is lacking in substance. I have found that QCAT does not have jurisdiction to conduct a review of the decision in question. The review application lacks substance.
Section 47 has a valid role to play in ensuring that cases lacking substance do not place the tribunal in the position of having to devote time and resources to proceeding with a case that has no prospects of success. When bringing an early end to a case, QCAT should be satisfied that the factors in favour of a person having the opportunity to continue to seek review of an administrative decision have been clearly outweighed by factors involving the proper use of QCAT’s resources and factors involving fairness to a respondent.
I am satisfied that the balance in this case clearly comes out in favour of the tribunal dismissing the review application under section 47 of the Queensland Civil and Administrative Tribunal Act 2009.
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