Saunders v Department of Housing
[2024] QCATA 81
•1 August 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Saunders v Department of Housing [2024] QCATA 81
PARTIES:
RAYMOND SAUNDERS (applicant/appellant)
v
DEPARTMENT OF HOUSING (respondent)
APPLICATION NO/S:
APL170-22
ORIGINATING APPLICATION NO/S:
OCL049-20
MATTER TYPE:
Appeals
DELIVERED ON:
1 August 2024
HEARING DATE:
28 May 2024
HEARD AT:
Brisbane
DECISION OF:
Senior Member Brown
ORDERS:
1. The decision of the Tribunal dated 10 May 2022 is set aside.
2. The matter is returned to the Tribunal.
CATCHWORDS:
HUMAN RIGHTS – PRIVACY LEGISLATION – privacy complaint - where applicant asserted failure by respondent to amend personal information – where applicant delayed in excess of 6 years to request referral of privacy complaint to the tribunal – whether s 38(1) of the Acts Interpretation Act 1954 (Qld) applies to the time for a complainant to request the referral of a privacy complaint to the tribunal – where the tribunal at first instance found the failure by the complainant to request the referral of a privacy complaint ‘as soon as possible’ rendered invalid the referral – whether the Tribunal erred in finding that s 38(1) of the Acts Interpretation Act 1954 (Qld) required the complainant to request the referral of his privacy complaint to the tribunal ‘as soon as possible’ – whether the Tribunal erred in finding that the failure by the complainant to request the referral of his privacy complaint ‘as soon as possible’ rendered invalid the referral
Acts Interpretation Act 1954 (Qld)
s 4, s 38
Human Rights Act 2019 (Qld)s 25
Information Privacy Act 2009 (Qld)
s 6, s 46, s 58, s 165, s 168 s 174, s 175, s 176
Niclin Constructions Pty Ltd v SHA Premier ConstructionsPty Ltd & Anor [2019] QCA 177
Re Conset Investments Pty Ltd [1993] 2 Qd R 244
Saunders v Department of Housing and Public Works [2022] QCAT 159Valuers Registration Board of Queensland v Murphy [2021] QCA 159
APPEARANCES & REPRESENTATION:
Applicant:
Mr W Isdale instructed by N R Barbi Solicitor
Respondent:
Ms H Davidson instructed by Crown Law
REASONS FOR DECISION
This is an appeal against a decision of the Tribunal dismissing the referral of Mr Davidson’s privacy complaint.
The decision of the Tribunal
In the proceeding below, the Tribunal identified the following preliminary issue for determination:
Whether the time limit set out in s 38(4) of the Acts Interpretation Act 1954 (Qld), namely ‘as soon as possible’, applies to the time within which a complainant may request the Information Commissioner to refer a privacy complaint to the Tribunal upon being given advice of his or her rights to do so pursuant to sections 175(b) and 176(1) of the Information Privacy Act 2009 (Qld).
The parties filed submissions addressing the preliminary issue. The Tribunal determined that Mr Saunders had not requested that his privacy complaint be referred to the Tribunal as soon as possible and dismissed the referral.[1] Mr Saunders appeals the decision.
[1]Saunders v Department of Housing and Public Works [2022] QCAT 159.
The disposition of the appeal requires consideration of various provisions of the Information Privacy Act 2009 (Qld) and the Acts Interpretation Act 1954 (Qld).
The Information Privacy Act 2009 (Qld) (‘IP Act’)
Of relevance in this appeal the IP Act provides:
(a)Section 44(1) – provides that an individual who has had access to a document of an agency or a document of a Minister may apply to the agency or Minister for amendment of any part of the individual’s personal information contained in the document that the individual claims is inaccurate, incomplete, out of date or misleading;
(b)Section 165(1) – provides that an individual whose personal information is, or at any time has been, held by a relevant entity may make a privacy complaint to the information commissioner;
(c)Section 174 – provides that Part 4 of the IP Act, ‘Referral of privacy complaints to QCAT’, applies if a privacy complaint is made to the information commissioner and:
(i) it does not appear to the commissioner reasonably likely that resolution of the complaint could be achieved through mediation; or
(ii) mediation of the complaint is attempted under this chapter but a certified agreement for the resolution of the complaint is not achieved;
(d)Section 175 – provides that the information commissioner must give written notice to both the complainant and the respondent for the privacy complaint advising:
(i) that Part 4 of the Act applies and why it applies; and
(ii) that the commissioner will, if asked by the complainant to do so, refer the privacy complaint to QCAT for hearing.
(e)Section 176(1) – provides that the information commissioner must refer the privacy complaint to QCAT, if asked to do so by the complainant, within 20 business days after being asked to refer it.
The Acts Interpretation Act 1954 (Qld) (‘AI Act’)
Section 38(4) of the AI Act provides:
If no time is provided or allowed for doing anything, the thing is to be done as soon as possible, and as often as the relevant occasion happens.
Section 4 of the AI Act provides:
The application of this Act may be displaced, wholly or partly, by a contrary intention appearing in the Act.
The privacy complaint by Mr Saunders
The privacy complaint by Mr Saunders relates to events that occurred in 2001. Mr Saunders was a resident in public housing. For present purposes it is sufficient to observe that events began when a letter dated 3 October 2001, under the hand of an officer of the Department, was sent to Mr Saunders (the letter).
On 25 January 2012 Mr Saunders made an application to amend his personal information contained in the letter. On 28 March 2012 the Department decided to amend the document in certain respects. Dissatisfied with the decision, Mr Saunders made a further complaint to the Department on 14 January 2013 regarding the information contained in the letter. The Department treated the complaint as an application to amend the letter. The application was refused.
Again, dissatisfied with the decision of the Department, on 4 June 2013 Mr Saunders made a complaint to the Information Privacy Commissioner. On 14 June 2013 the Information Commissioner wrote to Mr Saunders and advised him that a resolution of the complaint was not reasonably likely and that Mr Saunders was entitled to request the Commissioner refer the complaint to the Tribunal.
Thereafter no further steps were taken by Mr Saunders until 29 May 2020 when Mr Saunders requested the Information Commissioner refer the privacy complaint to the Tribunal. On 2 June 2020 the referral was filed in the Tribunal.
As may be seen from the foregoing, the progress of the privacy complaint has been attended by significant delay.
The decision below
In dismissing the referral the Tribunal made the following findings:
(a)the period of time between Mr Saunders being advised of his rights and when he requested the Office of the Information Commissioner (OIC) to refer the matter to the Tribunal was at least 6 years and 10 months;[2]
(b)the objects of the IP Act, and the power to decline to deal with a complaint if more than 12 months have elapsed, are more consistent with a requirement to request a referral as soon as possible rather than allowing a complainant to take as long as he or she chooses to request the referral of a complaint;[3]
(c)the IP Act does not manifest an intention that s 38(4) of the Acts Interpretation Act 1954 (Qld) should not apply, so as to leave the timing of a request for the referral of a complaint solely in the hands of the complainant to decide;[4]
(d)an individual in respect of a complaint for breach of privacy under the IP Act is seeking to invoke a statutory right for the purpose of prosecuting a private interest;[5]
(e)where a request for the referral of the privacy complaint is not made in accordance with s 38(4) of the AI Act, the Tribunal’s jurisdiction to hear and decide the complaint is not enlivened;[6]
(f)the imposition of a time limit on the request for a referral of a privacy complaint is compatible with s 25 of the Human Rights Act 2019 (Qld);[7]
(g)Mr Saunders had the ability to request the referral of his privacy complaint, but choose instead to pursue other avenues of complaint;[8]
(h)Given the magnitude of the delay, Mr Saunders failed to request the referral of his complaint ‘as soon as possible’ after being informed of his rights to do so.[9]
[2]Reasons [11].
[3]Reasons [35].
[4]Reasons [36].
[5]Reasons [37].
[6]Reasons [37].
[7]Reasons [40].
[8]Reasons [46].
[9]Reasons [47].
The grounds of appeal
At the hearing of the appeal Mr Saunders was permitted to amend the grounds of appeal. The amended grounds are:
(a)The Tribunal erred in concluding that s 38(4) of the AI Act applied such that Mr Saunders was required to make a request for a referral of his privacy complaint to the OIC “as soon as possible”;
(b)If s 38(4) of the AI Act did apply, the Tribunal erred in concluding that the failure by Mr Saunders to request the referral of the complaint to the Tribunal ‘as soon as possible’ resulted in the invalidity of a referral, with the result that the Tribunal was deprived of jurisdiction.
Consideration
Ground of appeal 1 – did the Tribunal err in finding that, by operation of s 38(4) of the AI Act, Mr Saunders was required to request the Information Commissioner refer his privacy complaint to the Tribunal ‘as soon as possible’?
The IP Act is silent on the time period within which a complainant may request the referral of a complaint to the Tribunal. The learned member concluded that in the absence of such a time period, s 38(4) of the AI Act applied.
It is trite to observe that in the absence of the application of s 38(4), the time for a complainant to request the referral of a privacy complaint to the Tribunal would arguably remain open ended. Of course a respondent might, for example, apply to have a referral dismissed pursuant to s 47 of the QCAT Act in circumstances where the respondent asserted prejudice as a result of such delay.
In Re Conset Investments Pty Ltd[10] Ryan J considered the forerunner provision of s 38(4). Conset involved an appeal under the Building Units and Group Titles Act 1980 (Qld) (‘BUGT Act’). The (then) Tribunal dismissed an appeal by Conset against an order by a referee. The BUGT Act permitted an appeal from the decision of the Tribunal to the Supreme Court, although no time frame for the filing of the appeal was stipulated in the Act. The appeal was filed more than eight months after the Tribunal decision. Ryan J stated:
The words in the first clause of s. 38(5) are, I consider, sufficiently comprehensive to include a situation where no time is prescribed within which any appeal must be instituted. Nobody is, of course, required to institute an appeal, though certain persons may do so. But if a person exercises his entitlement to appeal, no time is prescribed by the Act within which the appeal is to be instituted, and s. 38(5) is therefore applicable.
[10][1993] 2 Qd R 244.
Niclin Constructions Pty Ltd v SHA Premier ConstructionsPty Ltd & Anor[11] involved a proceeding under the Building and Construction Industry Payments Act 2004 (Qld) (‘BCIPA’). The BCIPA provided for the referral of disputed payment claims to an adjudicator. An adjudication application, once lodged with the Queensland Building and Construction Commission, was required to be served on the respondent. The BCIPA did not specify any time period for such service. Niclin served the adjudication applications twelve business days after the date of lodgement. The adjudicator decided that there had not been effective service of the applications, that service of the applications was an essential preliminary to the decision making process and that as a consequence he had no jurisdiction to decide the applications. Niclin applied to the Supreme Court for judicial review of the adjudicator’s decision. Ryan J, in dismissing the application, found that the AI Act applied and concluded that service of the applications had not been effected ‘as soon as possible’. The Court of Appeal dismissed Niclin’s appeal. Applegarth J, with whom the other members of the Court agreed, stated:
[18] The absence of an express time frame on service in s 21(5)[12] does not, in itself, indicate an intention to displace the time frame stated in s 38(4) of the AIA. Instead, the absence of an express period for service in s 21(5) means that s 38(4) applies, unless a contrary intention appears in the Act. In Attorney-General (Qld) v Australian Industrial Relations Commission, Gleeson CJ stated:
“Acts of Parliament are drafted, and are intended to be read and understood, in the light of the Acts Interpretation Act. A particular Act, and the Acts Interpretation Act, do not compete for attention, or rank in any order of priority. They work together. The meaning of the particular Act is to be understood in the light of the interpretation legislation. The scheme of that legislation is to state general principles that apply unless a contrary intention is manifested in a particular Act.”
[19] The issue, then, is whether the Act as a whole or its specific terms manifest an intention that s 38(4) of the AIA should not apply, so as to leave the timing of service of an adjudication application a matter entirely for the claimant to decide. Niclin points to two matters: the purpose of the Act, and the presence of other time frames.
…
[26] One, however, is not concerned with an explanation for the absence of an express time requirement in s 21(5). The absence of an express time requirement presumptively calls for the application of the time requirement in s 38(4) of the AIA. Therefore, what must be explained by Niclin is why the (presumed) presence in s 21(5) of a time requirement to act “as soon as possible” is inconsistent with the Act, which includes a variety of time requirements imposed upon a claimant, a respondent, the registrar and an adjudicator. As discussed, the purpose of the Act does not support the submission that the requirement to serve an adjudication application upon a respondent should be subject to no time limit at all.
…
[36] A requirement to serve an adjudication application upon the respondent “as soon as possible” is not inconsistent with the Act’s purpose or its terms. It is consistent with the Act’s purpose of ensuring the expeditious resolution of disputes. The interpretation contended for by Niclin, which would allow a claimant to take as long as it likes to serve an adjudication application after lodgement, is unlikely to have been intended by Parliament, so as to displace the presumed application of s 38(4) of the AIA. The Parliament is unlikely to have intended to allow a claimant to delay the progress of an adjudication application for as long as it chooses, leaving the respondent and the adjudicator in a state of uncertainty about when the adjudication process will conclude… (footnotes omitted).
[11][2019] QCA 177.
[12]The relevant service provision in the BCIPA.
Valuers Registration Board of Queensland v Murphy[13] involved the referral by the Board to the Tribunal of a disciplinary proceeding against Mr Murphy. On appeal the Board did not contest that s 38(4) applied to the time for the Board to refer a disciplinary proceeding to the Tribunal. The Board conceded that the referral had not been filed in QCAT ‘as soon as possible’. Mullins JA (as Her Honour then was), with whom the other members of the court agreed, stated ‘(t)hat is an appropriate concession’ without further considering the principles relevant to the application of s 38(4) to the relevant enabling Act.
[13][2021] QCA 159.
In accordance with Attorney-General (Qld) v Australian Industrial Relations Commission,[14] as applied in Niclin, the presumption is that s 38(4) of the AI Act applies to s 176(1) of the IP Act unless a contrary intention is expressed in the IP Act. Mr Saunders says that such a contrary intention is so expressed.
[14][2002] HCA 42.
Mr Saunders refers to s 6 of the IP Act which provides that the Act applies to the collection of personal information, regardless of when it came into existence and to the amendment of personal information regardless of when it was collected. The essence of Mr Saunders’s submission is that s 6 reflects an intention by the legislature that complaints about personal information may be raised in relation to information that came into existence many years previously.
Chapter 1 of the IP Act sets out, inter alia, the objects of the Act, the meaning of personal information, and the scope of personal information under the Act. Chapter 2 is concerned with the Information Privacy Principles and the obligation on agencies to comply with the IPPs. Chapter 3 of the IP Act deals with the rights of individuals to apply for access to, or to amend, personal information and how such applications are to be dealt with. Chapter 4 contains, inter alia, provisions establishing the information commissioner and the privacy commissioner and their respective roles and responsibilities.
Privacy complaints are dealt with in Chapter 5 of the IP Act. Section 165(1) provides that an individual whose personal information is, or at any time has been, held by a relevant entity may make a privacy complaint to the information commissioner.
Chapter 5, Part 2 of the IP Act sets out how privacy complaints are to be dealt with. Although no time limit is specified in relation to when such a complaint must be made, s 168(1)(f) provides that the information commissioner may decline to deal with a privacy complaint if 12 months have elapsed since the complainant first became aware of the act or practice the subject of the complaint or part. While the discretion rests with the commissioner, s 168(1)(f) empowers the commissioner to temporally limit complaints rather than requiring the commissioner to deal with a complaint regardless of when it is made.
While s 6 makes clear that the IP Act relates to personal information regardless of when it came into existence, the section not concerned with when a complainant may exercise rights relating to such information. As s 168(1)(f) makes clear, when a complainant first becomes aware of the act or practice the subject of the complaint is relevant by empowering the information commissioner to decline to deal with a complaint made more than 12 months after the complainant acquires the relevant state of knowledge. Having become aware of the act or practice the subject of a privacy complaint, s 168(1)(f) reflects a legislative intent that a complainant must act promptly in making a complaint to the commissioner or risk the commissioner declining to deal with the complaint. This is consistent with s 38(4) of the AI Act applying to s 176(1) of the IP Act.
If the commissioner decides to deal with a privacy complaint, the commissioner may: refer the complaint to another entity[15]; cause the complaint to be mediated[16]; inform the complainant and the respondent that it does not appear to the commissioner reasonably likely that the resolution of the complaint could be achieved through mediation.[17] In the event of the latter, the commissioner must give written notice to the parties advising, inter alia, that the complaint will be referred to QCAT if the complainant so requests.[18]
[15]IP Act, s 169
[16]Ibid, s 171.
[17]Ibid, 174(a).
[18]Ibid, s 175(b).
Chapter 5, Part 4 of the Act deals with the referral of complaints to QCAT including who the parties to the proceedings in QCAT are[19] and the orders the tribunal may make.[20]
[19]Ibid, s 177.
[20]Ibid, s 178.
The primary object of the IP Act is to provide for the fair collection and handling in the public sector environment of personal information; and a right of access to, and amendment of, personal information in the government’s possession or under the government’s control unless, on balance, it is contrary to the public interest to give the access or allow the information to be amended.[21] The primary object of the IP Act is not inconsistent with the application of s 38(4) of the AI Act to s 176 of the IP Act. As I have earlier observed, while the Act applies to personal information regardless of when it came into existence, this is of itself not inconsistent with the application of a temporal constraint on when a complainant may request the referral of a complaint to the Tribunal.
[21]IP Act, s 3(1).
Mr Saunders refers to s 58(4) of the IP Act which provides that it is Parliament’s intention that the Act be administered with a pro-disclosure bias and a pro-amendment bias. Section 58 is however concerned with how access or amendment applications should be dealt with by an agency or Minister. It is not concerned with the exercise by a complainant of rights in circumstances where a privacy complaint has been dealt with by the commissioner. I do not accept that s 58(4) is inconsistent with a complainant being required to request that a privacy complaint be referred to the Tribunal as soon as possible after being advised of the right to do so.
Information Privacy Principle (‘IPP’) 7 provides that an agency having control of a document containing personal information must take all reasonable steps including by making an appropriate amendment to ensure personal information is accurate and complete, up to date and not misleading. The Explanatory Notes to the Bill state: The IPPs give effect to the Bill’s object of fair collection and handling of personal information by providing the framework under which agencies must operate in collecting, storing, managing, transferring, using and disclosing personal information.
Mr Saunders says no time limit is imposed by the IP Act on the making of a complaint about the breach by an agency of an IPP. IPP 7 is, again, not concerned with the exercise of the rights of an individual who complains that their rights have been breached. IPP 7 is concerned with the obligations imposed upon an agency to amend a document containing personal information. In circumstances where an individual asserts that an agency has not complied with IPP 7, they may make a complaint to the commissioner.
Mr Saunders says that the consequence of the application of s 38(4) of the AI Act to s 176(1) of the IP Act would be that personal information about an individual which may be inaccurate, misleading or incomplete can remain unamended and a complainant shut out of an ability to vindicate their rights simply because they have not sought the referral of an amendment request ‘as soon as possible’.
The IP Act prescribes a clear process by which an individual may make a privacy complaint, and the steps required to be undertaken by both the commissioner and the individual once the complaint has been made. As has been earlier explained, the commissioner may decline to deal with a complaint if 12 months have elapsed since the complainant first became aware of the act or practice complained of. If the commissioner accepts the complaint, it may be referred to another agency, referred for mediation or the complainant may exercise the right to have the complaint referred to QCAT. This process enables the exercise by an individual of their statutory rights under the IP Act. Indeed, the 12 month period provided for in s 168(1)(f) of the IP Act supports the conclusion that, contrary to an evinced intention that s 38(4) of the AI Act does not apply to s 176(1) of the IP Act, the IP Act recognises that an individual should act promptly to assert their rights once an act or practice giving rise to a complaint is identified by the individual.
The requirement for a complainant to request that the commissioner refer a privacy complaint to QCAT as soon as possible is not inconsistent with the primary object of the AI Act or any other provision of the Act. The application of s 38(4) of the AI Act to s 176 is also consistent with s 171 of the Act which requires the information commissioner to consider whether the resolution of the privacy complaint could be achieved through mediation and, if so, to take all reasonable steps to cause the complaint to be mediated. ‘Reasonable steps’ would include prompt action to arrange a mediation. This is consistent with an expressed legislative intent that once an act or practice giving rise to a complaint is identified, an individual should act promptly to make a complaint to the commissioner and thereafter the complaint process will progress expeditiously.
As was reasoned in Niclin, the interpretation contended for by Mr Saunders, which would allow a complainant to take as long as they like to request the commissioner to refer a complaint to the Tribunal is unlikely to have been intended by Parliament so as to displace the presumed application of s 38(4) of the AI Act. Again, as was stated in Niclin, it is unlikely the legislature intended to allow a complainant to delay the progress of a complaint for as long as he or she may choose, leaving the respondent in a state of uncertainty about when the complaint process will conclude.
Accordingly, the time frame stated in s 38(4) applies in relation to a request by a complainant pursuant to s 176(1) of the AI Act to refer a privacy complaint to QCAT. Mr Saunders was required to request the commissioner to refer his privacy complaint as soon as possible after he received the written notice pursuant to s 175 of the Act. It follows that there was no error by the learned member. Ground of appeal 1 is not made out.
Ground of appeal 2 – did the Tribunal err in concluding that the failure by Mr Saunders to request referral of his privacy complaint as soon as possible after receiving the s 175 notice resulted in the invalidity of the referral by the OIC to the Tribunal?
It can hardly be contentious that Mr Saunders failed to request the commissioner refer his complaint to the Tribunal ‘as soon possible’. On no view of the evidence before the Tribunal below could Mr Saunders be considered to have acted ‘as soon as possible’ in delaying 6 years and 10 months to request the commissioner refer the complaint to the Tribunal.
Ground of appeal 2 requires consideration of whether the learned member erred in disposing of the proceeding on the basis that the referral was invalid. Although the learned member made no specific determination of invalidity it appears reasonably clear from the reasons that the issue of invalidity was forefront in the learned member’s reasoning.[22] The disposition of appeal ground 2 turns on the answer to the following: In circumstances where s 38(4) of the AI Act applies, and a request for the referral of a privacy complaint is required to be made ‘as soon as possible’, and where such a request is not made ‘as soon as possible’, is the referral invalid? Alternatively, is a referral filed in such circumstances valid and the available remedy for a respondent who complains of delay by the complainant to apply to have the proceeding dismissed pursuant to s 47 or s 48 of the QCAT Act?
[22]Reasons at [35].
The consequence for non-compliance with the requirement for an act to be done ‘as soon as possible’ is to be ascertained by construing the legislation that regulates the doing of the act to which s 38(4) of the AIA applies.[23] In Project Blue Sky v Australian Broadcasting Authority[24], the majority of the High Court stated:
A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute".
[23]Valuers Registration Board of Queensland v Murphy [50] citing Project Blue Sky at [91].
[24][1998] HCA 28.
Earlier in these reasons I referred to the decision of the Court of Appeal in Niclin Constructions Pty Ltd v SHA Premier ConstructionsPty Ltd & Anor.[25] Dealing with the issue of the jurisdiction of the adjudicator to deal with the adjudication application Applegarth J stated:
[45] As noted, Niclin does not cavil with the primary judge’s finding that service under s 21(5) of the Act was required before an adjudication application may be validly undertaken. This makes it unnecessary to review that finding.
[46] Some parts of Niclin’s submissions might, in isolation, have suggested that it resiled from that position. However, Niclin’s argument was to the effect that on a proper construction of the Act, it was not required to serve the adjudication application as soon as possible (or indeed at any time) and so a failure to serve the adjudication application did not render the adjudication application invalid or deprive the adjudicator of jurisdiction. The issue of statutory interpretation has been resolved against Niclin.
[47] The Act requires service of a copy of an adjudication upon a respondent. The timing of the adjudication response (and therefore the process of adjudication) depends on the receipt by a respondent of a copy of the adjudication application. In light of the concession made by Niclin about the primary judge’s finding on jurisdiction in the absence of effective service, it is unnecessary to dwell upon any subtle difference between being served with a copy of an adjudication application and receiving it. The consequence is the same for the jurisdiction of the adjudicator to decide the application.
[25][2019] QCA 177.
In Valuers Registration Board of Queensland v Murphy[26] the Court of Appeal found that a disciplinary complaint, not referred to the Tribunal by the Board ‘as soon as possible’, was not invalid. Mullins JA, with whom the other members of the court agreed, stated:
[50] The requirement in s 38(4) of the AIA is a general requirement that applies to the doing of an act under many different statutes and therefore in many different circumstances. Section 38(4) of the AIA does not itself deal with the consequence of non-compliance. It is a matter for construction of the legislation that regulates the doing of the act to which s 38(4) of the AIA applies to ascertain the consequence for the non-compliance with the requirement for the act to be done “as soon as possible”: Project Blue Sky at [91].
[51] McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky (at [93]) favoured as the test for determining the issue of validity of an act done in breach of a statutory condition of asking “whether it was a purpose of the legislation that an act done in breach of the provision should be invalid” and that, in determining the question of purpose, “regard must be had to the ‘the language of the relevant provision and the scope and object of the whole statute’”.
…
[57] The better analysis of the scheme under the Act for referral to QCAT in connection with the disciplinary process is that a breach of s 38(4) of the AIA does not invalidate the referral, but is a relevant matter on which the respondent can rely, if prejudiced by the delay in the referral or any aspect of delay in the disciplinary process before the matter is referred by the board to QCAT. The concern of the respondent for delays in the disciplinary process affecting his professional standing can be dealt with by QCAT that regulates its processes, including by striking out a proceeding pursuant to s 47(1) of the QCAT Act that is an abuse of process or pursuant to s 48(2)(a) of the QCAT Act on the basis that the board is acting in a way that unnecessarily disadvantages the respondent.
[26][2021] QCA 159
Mullins JA referred to Re Conset Investments Pty Ltd[27] and stated:
The right of appeal in Conset was an exercise of a private right conferred on Conset to challenge the order concerning the removal of the structure installed by Conset. The decision can therefore be distinguished on the basis that the referral by the board of the respondent’s matter to QCAT was an exercise of a statutory function in connection with a disciplinary process. Although Conset was concerned with the exercise of an entitlement to appeal that was found not to be implemented “with all convenient speed” as the forerunner provision to s 38(4) of the AIA then required, I would not follow Conset to the extent that it is authority for striking out the appeal as incompetent merely because it was instituted without all convenient speed, without consideration of whether prejudice was caused to the respondent to the appeal, as a result of the non-compliance with the requirement under the equivalent to s 38(4) of the AIA.
[27][1993] 2 Qd R 244.
Of the decision in Niclin, Mullins JA said:
The decisions in Austco and Niclin are explicable by the exigencies of the particular legislation under consideration in those cases. It is also relevant that the service that was required in each case of documents “as soon as possible” concerned the regulation of statutory rights between parties that were in addition to the contractual rights of the party seeking to take advantage of the beneficial protections afforded by the schemes for facilitating payment respectively under the Subcontractor’s Charges Act and BCIPA.
The learned member considered Conset, Niclin and Murphy and stated:
[36] In considering the consequence of non-compliance with s 38(4) of the AI Act on the validity of a referral under the IP Act, I note that the decision of Mullins JA in Murphy related to a failure by the Board to make a referral ‘as soon as possible’ after being requested to do so by the valuer. In the context of the IP Act, this would equate to the time taken by the OIC to refer the complaint to the Tribunal after being requested to do so by the complainant. Accordingly, the decision in Murphy would have direct application only to the consequences of a failure by the OIC to refer a complaint within the express time limit of 20 days contained in s 176(1) of the IP Act. That is not the issue in the present case.
[37] Unlike the position of the Board in Murphy, when making a request to the OIC for referral to the Tribunal, a complainant is not exercising a statutory function for the public benefit. Rather, a complainant is seeking to invoke a statutory right for the purpose of prosecuting a private interest. In these circumstances, I consider that a complainant’s right to request the referral of his complaint to the Tribunal is more akin to the private right in Conset or Niclin. In my view, where a request for the referral of the privacy complaint is not made in accordance with s 38(4) of the AI Act, the Tribunal’s jurisdiction to hear and decide the complaint is not enlivened.
For the reasons that follow, I conclude that the learned member erred in finding that the referral of the privacy complaint was invalid.
The statutory regime under the IP Act is quite different to that under the BCIPA considered in Niclin. As the primary judge observed in Niclin the BCIPA imposes ‘brutally fast timeframes’. And as Mullins JA noted in Murphy, service of the adjudication application in Niclin was required to be undertaken ‘as soon as possible’ in the context of a legislative scheme regulating the statutory rights between parties additional to their contractual rights and where a party was seeking to take advantage of beneficial protections under the relevant legislation. These are matters that clearly distinguish Niclin and the relevant statutory regime from the present case.
Conset involved the exercise of a private right conferred on Conset to challenge an order under the BUGT Act concerning the removal of a building structure. The Court of Appeal in Murphy declined to follow Conset insofar as it was authority for striking out an appeal not brought ‘as soon as possible’ without consideration of whether prejudice was caused to the respondent to the appeal. The corollary of this for present purposes is apparent. Whether a respondent is prejudiced by a complainant’s failure to comply with the requirement to request the referral of a privacy complaint ‘as soon as possible’ is one of a number of matters to be considered in circumstances where an application is made pursuant to s 47 or s 48 of the QCAT Act to dismiss a proceeding.
In my view it was not a purpose of the IP Act that the failure by a complainant to request the commissioner refer a privacy complaint to the Tribunal ‘as soon as possible’ renders invalid the consequent referral. I have referred earlier in these reasons to the objects of the IP Act and the process set out in the Act in respect of privacy complaints. I have also referred to various provisions of the IP Act evincing a legislative intent that a complainant act promptly to exercise their rights once aware of a relevant act or practice. While a complainant is required to act promptly, the provisions of the IP Act are not consistent with a legislative intent that the referral of a privacy complaint be rendered invalid as a consequence of the failure by a complainant to request the commissioner to refer the complaint ‘as soon as possible’.
Ground of appeal 2 is made out.
Conclusion
The decision of the Tribunal dated 10 May 2022 is set aside and the matter returned to the Tribunal to progress in accordance with directions by the Tribunal.
0
5
1