WW v Department of Education and Training

[2011] NSWADT 300

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	WW v Department of Education and Training [2011] NSWADT 300
Hearing dates:	On the Papers
Decision date:	15 December 2011
Jurisdiction:	General Division
Before:	S Higgins, Deputy President
Decision:	The applicants' application is dismissed under subparagraph 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1997.
Catchwords:	Dismissal - application for review of conduct of a public sector agency - whether application fails to identify any arguable contravention and is otherwise frivolous, vexatious, misconceived or lacking in substance.
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Privacy and Personal Information Protection Act 1998
Cases Cited:	Department of Education & Training v GA (No. 3) [2004] NSWADTAP 50 Department of Education and Training v ZR (No.2) [2009] NSWADTAP 34 GA v University of Sydney (No 2) [2010] NSWADTAP 53 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 KO v NSW Police [2005] NSWADTAP 56 NL v Sydney South West Area Health Service [2009] NSWADT 278 OD v Department of Education and Training [2005] NSWADTAP 74 SQ v Department of Attorney General and Justice (GD) [2011] NSWADTAP 55 Vice-Chancellor, Macquarie University v FM [2005] NSWCA 192
Category:	Interlocutory applications
Parties:	WW and WZ (Applicants) Department of Education and Training (Respondent)
Representation:	WW (Applicants in person) Crown Solicitor (Respondent)
File Number(s):	103303
Publication restriction:	ADT Practice Note 22 applies

REasons for decision

Introduction

1. GENERAL DIVISION (S HIGGINS, DEPUTY PRESIDENT): The applicants, WW and WZ, have made an application seeking external review of conduct of the respondent, the Department of Education and Training, that they allege was a contravention of an information protection principle under the provisions of the Privacy and Personal Information Protection Act 1998 (PPIP Act) in regard to their personal information.

1. The respondent has made an application that the applicants' application for review be dismissed, under subparagraph 73(5)(g)(ii) of the Administrative Decisions Tribunal Act 1997 (ADT Act), on the grounds that the applicants have failed to identify any conduct by the respondent which they allege to be a contravention of an information protection principle in regard to their personal information and that the applicants' application is otherwise misconceived, vexatious, misconceived or lacking in substance.

1. The respondent filed written submissions, in support of its application after the applicants had filed and served a document, which they contended more clearly identified the conduct the subject of their review application. This was a detailed document, which the applicants were requested to prepare as their application for internal review to the respondent had failed to do so. Instead, their application was broadly based and included many aspects of their ongoing dispute with the respondent in regard to their son's education.

1. In light of the respondent's written submissions I determined that it was appropriate that the respondent's dismissal application be determined on an interlocutory basis. I also determined that the issues involved in this application were such that they could be determined on the papers, pursuant to section 76 of the ADT Act once the applicants had been given an opportunity to file and serve written submissions in reply .

1. For the reasons set out below, I have found that the applicants' application for review of conduct under the PPIP Act is not arguable, is misconceived and lacks substance and should be dismissed.

Relevant law

The PPIP Act

1. The PPIP Act prescribes a number of information protection principles that a government agency is required to comply with in regard to the 'personal information' about a person.

1. 'Personal information' is defined in section 4 of the PPIP Act. It relevantly provides as follows:

4 Definition of "personal information"

(1)In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.

(2)Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.

(3)Personal information does not include any of the following:

...

(4) For the purposes of this Act, personal information is held by a public sector agency if:

(a) the agency is in possession or control of the information, or

(b) the information is in the possession or control of a person employed or engaged by the agency in the course of such employment or engagement, or

(c)the information is contained in a State record in respect of which the agency is responsible under the State Records Act 1998.

(5) For the purposes of this Act, personal information is not collected by a public sector agency if the receipt of the information by the agency is unsolicited.

1. The Court of Appeal in Vice-Chancellor, Macquarie University v FM [2005] NSWCA 192 ruled that 'personal information' held in the minds of employees of a public sector agency is not information regulated by the PPIP Act. The rulings in this decision are considered more fully below.

1. Subsection 20(1) of the PPIP Act provides that the information protection principles in Division 1 of Part 2 of the Act apply to public sector agencies. Section 21 provides that a public sector agency 'must not do anything, or engage in any practise, that contravenes an information protection principle applying to the agency.' There is no dispute that the respondent is a public sector agency for the purposes of the Act and that the information protection principles apply to it in regard to personal information falling within the Act. Subsection 22(2) of the PPIP Act provides that adherence to the information protection principles may be modified by privacy codes practise that apply to a public sector agency. Whether the conduct the subject of this application falls within such a modifying privacy code of practise is not an issue that has arisen at this stage of the applicants' application.

1. The information protection principles in Division 1 of Part 2 relate to the following activities of an agency in regard to personal information:

• collection of personal information - sections 8, 9, 10 and 11.
• the retention and security of personal information held by a government agency - sections 11 and 12
• knowledge of and access to personal information held by a government agency - sections 13 and 14
• alteration of personal information - section 15
• accuracy of personal information to be checked by the agency before its use - section 16
• limits on the use of personal information - section 17
• limits on and restrictions on disclosure of personal information - sections 18 and 19 .

1. Part 5 of the PPIP Act deals with the review of conduct by an agency which is alleged, by an aggrieved person, to be conduct falling within section 52 of the PPIP Act. This includes conduct that is alleged to be a contravention of one or more of the privacy information protection principles in regard to that person's personal information (see paragraph 52(1)(a) of the PPIP Act. There are two levels of review provided for in Part 5. The first level of review is contained in section 53, which is an internal review by the agency that is alleged to have engaged in the contravening conduct. The next level of review is contained in section 55. This is an external review, by the Tribunal, of the alleged contravening conduct.

1. Section 53 of the PPIP Act relevantly provides as follows:

53 Internal review by public sector agencies

(1) A person ( the applicant ) who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct.

(1A) There is no entitlement under this section to the review of the conduct of a Minister (or a Minister's personal staff) in respect of a contravention of section 15 (Alteration of personal information).

Note. Any such conduct can still be reviewed by the Tribunal. See section 55 (1A).

(2) The review is to be undertaken by the public sector agency concerned.

(3) An application for such a review must:

(a) be in writing, and

(b) be addressed to the public sector agency concerned, and

(c) specify an address in Australia to which a notice under subsection (8) may be sent, and

(d) be lodged at an office of the public sector agency within 6 months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct the subject of the application, and

(e) comply with such other requirements as may be prescribed by the regulations.

(4) Except as provided by section 54 (3), the application must be dealt with by an individual within the public sector agency who is directed by the agency to deal with the application. That individual must be, as far as is practicable, a person:

(a) who was not substantially involved in any matter relating to the conduct the subject of the application, and

(b) who is an employee or officer of the agency, and

(c)who is otherwise suitably qualified to deal with the matters raised by the application.

(5) In reviewing the conduct the subject of the application, the individual dealing with the application must consider any relevant material submitted by:

(a) the applicant, and

(b)the Privacy Commissioner.

(6) The review must be completed as soon as is reasonably practicable ...

1. Subsection 55(1) relevantly provides as follows:

55 Review of conduct by Tribunal

(1) If a person who has made an application for internal review under section 53 is not satisfied with:

(a) the findings of the review, or

(b) the action taken by the public sector agency in relation to the application,

the person may apply to the Tribunal for a review of the conduct that was the subject of the application under section 53.

(1A) A person ( the applicant ) who is aggrieved by the conduct of a Minister (or a Minister's personal staff) constituting a contravention of section 15 (Alteration of personal information) may apply to the Tribunal for a review of the conduct.

(2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders:

(a) subject to subsections (4) and (4A), an order requiring the ...

1. Subsection 55(1) has been construed by the Tribunal to limit its jurisdiction in regard to the conduct the subject of review to the conduct complained of by the applicant in his/her internal review application to the public sector agency under section 53 of the PPIP Act: see OD v Department of Education and Training [2005] NSWADTAP 74 at [12]; KO v NSW Police [2005] NSWADTAP 56 at [13]; Department of Education and Training v ZR (No.2) [2009] NSWADTAP 34 at [16]; NL v Sydney South West Area Health Service [2009] NSWADT 278 at [33]. To put it another way, the Tribunal does not have jurisdiction to review conduct that was not the subject of the internal review application: see Department of Education & Training v GA (No. 3) [2004] NSWADTAP 50 at [7] and ZR No. (2) (supra) at [17].

1. In KO (supra) at [13] and [14], the Appeal Panel said the following:

13 ... in our view, it is clear from the scheme of the Act, in particular ss 53 and 55, that the scope of the application for internal review, reasonably construed, provides the scope for the agency's examination of the application. Unless there is some widening of the application within the process which is accepted by the agency, the application for internal review, reasonably construed, sets the scope for the application for review of the conduct by the Tribunal. It is plain from the scheme of the Act that the Parliament intended that the agency had the first opportunity, always, to deal with the matters of complaint. Except in the case where the agency fails to respond to the application for internal review, the scheme of the Act contemplates that the internal review report and its outcomes will be among the material that is placed before the Tribunal. We will not, on this occasion, deal at length with these questions. In addition to the authorities noted by the Tribunal [...].

14 The question of what is the scope of the application, reasonably construed, is one of fact, but, as we have indicated, affecting jurisdiction. Its determination is not driven, in any significant way, in our view by any recitation of Information Protection Principles that may appear in the applicant's application. Often there will be no recitation of Information Protection Principles. Sometimes there will be detailed recitations seeking to bring into play many, or everyone, of the Principles. The key question is what facts and circumstances has the applicant referred to which might give rise to questions of compliance with the Information Protection Principles, and to identify the relevant Principles.

The ADT Act

1. Section 73 of the ADT Act sets out the procedure of the Tribunal generally. It relevantly provides as follows:

73 Procedure of the Tribunal generally

(1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure.

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

(4) The Tribunal is to take such measures as are reasonably practicable:

(a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and

(b) if requested to do so-to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.

(5) The Tribunal:

(a) is to act as quickly as is practicable, and

(b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and

(c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and

(d) in the case of a hearing-may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and

(e) may require a document to be served outside the State, and

(f) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and

(g) may dismiss at any stage any proceedings before it in any of the following circumstances:

(i) if the applicant (or, if there is more than one applicant, each applicant) withdraws the application to which the proceedings relate,

(ii) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,

(iii) if the applicant (or, if there is more than one applicant, each applicant) has failed to appear in the proceedings,

(iv) if the Tribunal considers that there has been a want of prosecution of the proceedings, and

(h) may reinstate proceedings that have been dismissed because of an applicant's failure to appear if the Tribunal considers that there is a reasonable explanation for that failure.

(5A) ...

(6) ...

1. It is well established that the power to dismiss proceedings should be exercised only in plain and obvious case where the proceedings are 'manifestly untenable' or 'doomed': see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.

1. In GA v University of Sydney (No 2) [2010] NSWADTAP 53 at [10], the Appeal Panel in considering the question of whether proceedings were vexatious for the purposes of a costs application said:

'... proceedings may be vexatious if they are instituted with the intention of annoying, harassing or embarrassing a defendant, if they are brought for a collateral purpose, are devoid of any practical effect, or are manifestly untenable ...'

The applicants' internal review request

1. The applicants lodged their written complaint with the respondent on 9 September 2010. The complaint was headed 'Privacy Complaint: internal review application'. The complaint was eight pages in length and contained considerable detail.

1. On 8 October 2010, Ms L Ragupathy, a legal officer in the employ of the respondent wrote to the applicants acknowledging receipt of their complaint and advising them that their complaint was being treated as an application for internal review under section 53 of the PPIP Act. It was a five page response in which Ms Ragupathy endeavoured to summarise the basis of the applicants' complaint and clarify the many allegations the applicants had made in their complaint. Ms Ragupathy also requested the applicants provide her with some further information.

1. The applicants immediately provided the requested information. However, when the respondent had failed to complete the internal review within the time prescribed under subsection 53(6) of the PPIP Act the applicants lodged this application with the Tribunal, as they were entitled to do.

1. In an endeavour to obtain some clarity as to the specific nature of the conduct for which the applicants sought external review by the Tribunal, orders were made for the applicants to file and serve an outline of the conduct of the respondent which they alleged was a breach of an information protection principle in regard to their personal information. In accordance with the orders the applicants again filed and served a lengthy document, which by reference to specific information protection principles, again reassert the many allegations they had made against the respondent in their initial complaint.

1. The applicants' initial complaint (i.e. the internal review application) concerned events that occurred in 2008 in regard to their teenage son and his schooling. The applicants' son had been attending a performing arts school and in April 2008, the applicants decided to enrol him at a high school within their residential zone. The applicants' son, who suffers from a mental illness, refused to attend the high school chosen by his parents and he continued to attend the performing arts school. I understand that the applicants' son was not living at home at that time but was living elsewhere to the knowledge of and with the support of the applicants.

1. As I understand the applicants' complaint, they allege that, contrary to their wishes, the principal of the school of performing arts had advised their son that he could continue to attend that school. They also allege that on being informed by their son that he was 'living independently' of his parents, the principal and the school advised their son that he could continue attending that school and apply for and receive a Centrelink Youth Allowance benefit.

1. It is this advice by the principal, which is at the centre of the applicants' complaint. In their complaint they describe their concerns as follows:

'... [our son] attendance at [the performing arts school] apparently with the [schools] principal's permission, but not ours, should legally have been recorded in the [schools] attendance record. We have not received a written explanation from [the respondent] as to how a child's attendance can be legally allowed or recorded on a School Attendance record, without the parental permission for that child to attend that school. This appears to be a breach of our private affairs. [The respondent] has suggested to us that this is lawful but has not given us a legal source or reference for this suggestion.

... we also question who, at [the school], suggested to our child that he could be eligible for youth allowance (YTLAH), when he had recorded at Human Services as choosing not to live at home. The advice that he could be eligible was not in accordance with Federal and State legislation, as our son confirmed to us, but indicated to him that he would have the unwarranted, unsubstantiated support of [the school] in any application. It was a breach of our privacy to give him advice on how not to cooperate with his family, when NSW Human Services had confirmed that the law required us to be the people responsible for him until he was 18 and that he should live in our care ...

... [we] had parental responsibility for [our son], we described our personal, private, familiar complaint against the [respondent] and their employee's actions, decisions and inactions concerning our involved child, a member of our family, which constitute breaches of our familiar legal privacy as:

collection of the complainant's personal information (ICP s 1-4)

security or storage of the complainant's personal information (IPC 5)

refusal to let the complaint access or find out about their own personal information (IPP 6-7)

accuracy or relevance of the complainant's personal information (IPP s 8-9)

use of the complainant's personal information (IPP 10)

disclosure of the complainant's personal information (IPP s 11-12), and/or the public ...

other/its not clear ...

1. As I understand the applicants' complaint, their primary concern is that the principal of the performing arts school had 'collected' information from their son about their personal (family) affairs and then provided advice on the basis of the information 'collected' without any prior consultation with them, including verifying the information about their son's living arrangements. These, the applicants' contended were matters of private concern to them as decisions about which school their son was to attend and his living arrangements were solely their responsibility as parents until their son reached the age of 18.

1. The applicants go on to explain the consequences of the principal's advice to their son. It would appear that their son did apply for and obtained Centrelink benefits and has incurred a considerable debt as a result. It is unnecessary for the purpose of this interlocutory application of the respondent to repeat each of the matters raised by the applicants.

Consideration

1. I can understand the concerns raised by the applicants in their complaint. However, I agree with the respondent that many of the matters raised by the applicants go well beyond that which is conduct falling within the terms of the PPIP Act and which the Tribunal has jurisdiction to review. For example, the Tribunal has no jurisdiction to: (a) enquire into the lawfulness or otherwise of decisions of the respondent to allow the applicants' son to continue to attend the performing arts school, (b) the applicants' rights and obligations as parents, (c) the legal basis on which the respondent made decisions about their son's schooling against their wishes, or (d) enquire into their son's eligibility or otherwise to have received a youth allowance.

1. I have also explained to the applicants, the Tribunal's jurisdiction to review conduct of an agency under the PPIP Act is not at large. As I have indicated above, the Tribunal can only review conduct, which an aggrieved person (the applicant) alleges to be conduct of a public sector agency that contravenes one of more of the information protection principles under the PPIP Act in regard to the applicant's personal information.

1. Without determining the issue for the purpose of this application, I accept that information about a person's family may amount to personal information of each person in that family for the purpose of subsection 4(1) of the PPIP Act. However, personal information that is exclusively about a person, including a minor or young person, is not also personal information about the parents or other members of that person's family.

1. In any event, as I have indicated, for personal information about the applicants to fall within the requirements of the Act, the information must be 'held' by the agency in documentary form. In FM , at [28] Spigelman CJ said that 'it is almost impossible to conceive how' sections of the Act in regard to the information protection principles 'could operate in practice if they were intended to apply to information in the minds of employees acquired by direct visual or aural experience and never recorded in any manner.'

1. FM was a doctoral student at Macquarie University, whose enrolment was terminated for disciplinary reasons. Subsequently, FM sought to become a doctoral student at another university. The other university made enquiries of Macquarie University concerning the circumstances of the termination of FM's candidature. Information was supplied in two telephone conversations. In the both conversations, a person from Macquarie University related to a person at the other university their observations of incidents that lead to complaints being made against FM, and information they had been told about other incidents. As I have indicated, the Court of Appeal found that the disclosure of the personal information about FM, by Macquarie University, was not conduct falling within the terms of the PPIP Act as the personal information about FM was not 'held' by Macquarie University: see FM at [28], [40], [42], [43]. The Court of Appeal went on to explain that as the information protection principles contained in Division 1 of Part 2 of the PPIP Act (in particular, sections 12 to19) all adopt as their criterion of operation a reference to where a public sector agency 'holds personal information', it is overwhelmingly probable that this formulation was used in the same sense in each information protection principle with in that Division. That is, in order for the PPIP Act to have any application, the agency must 'hold' the personal information in a documentary form: see also SQ v Department of Attorney General and Justice (GD) [2011] NSWADTAP 55 at [8].

1. As I have indicated above, subsection 4(5) of the PPIP Act provides that unsolicited personal information received by a public sector agency is not information that is 'collected' by an agency. However, the Tribunal has accepted that it is nevertheless information that is 'held' by an agency if it is in documentary form.

1. It is the respondent's contention that the applicants' application for internal review, as particularised by the applicants in these proceedings, is not about the respondent's conduct concerning their personal information. On the contrary, it is contended that what is of concern to the applicants is the lawfulness or otherwise of decisions by employees of the respondent to allow their son to continue to attend the performing arts school when they had decided to enrol him elsewhere.

1. The respondent also contends that insofar as the applicants have identified an alleged contravention by the respondent in regard to a specified information protection principle, these are not arguable and that they are seeking to obtain answers to questions that have already been provided by the respondent. That is, their application for review has been made for an improper purpose.

1. I agree with the respondent that the alleged contraventions as formulated in the applicants' complaint and their subsequent particularisation thereof are difficult to understand and appear to relate to matters well beyond conduct for which they can seek review under sections 53 and 55 of the PPIP Act. I also note from the material filed by the applicants that they have previously raised their concerns with the respondent and a response was received in late 2008.

1. However, I do not believe the applicants have sought review for an improper purpose. The manner in which they have approached their application for internal and external review, suggests they have little, if any, understanding of how the provisions of the PPIP Act might apply in regard to the events outlined in their application for review.

1. At its highest, the applicants' complaint to the respondent (i.e. internal review application) and the clarifying document filed in these proceedings might be seen as containing an allegation of contravening conduct by the respondent contrary to the PPIP Act along the following lines:

• collection or unsolicited receipt of personal information (including personal information about his parents, the applicants) from the applicants' son in regard to his living arrangements at or around the time the applicants' decided to enrol him at a high school in their residential zone, and
• use of the information in so far as it included personal information about his parents, the applicants, without taking such steps as are reasonable in the circumstances to ensure that the information in so far as it relates to the applicants is accurate etc.

1. However, as I have indicated, there can only be contravening conduct if the applicants' son provided the information as alleged, that the information is in a documentary form and 'held' by the respondent, the information provided by the son includes personal information about the applicants and the respondent used this information contrary to the requirements of section 16 of the PPIP Act.

1. In this regard, I note the contents of Document 1 that was attached to the document filed and served by the applications in these proceedings in order to clarify their complaint of alleged contravening conduct under the PPIP Act. That Document is stated to be a statement of the applicants' son dated 22 March 2009. In that Document the applicants' son states:

'I told Bryan Campbell that I was not living at home on Day One, Term 2 2008. I did not tell anyone that I was living independently before 26 th May 2008 as I was not.'

1. The applicant's son also said that he applied for the Centrelink Youth Allowance on 2 April 2008 and that he did not receive any allowance until 26 May 2008. As I have indicated above, 2 April 2008 was the date the applicants enrolled their son at a high school in their residential zone.

1. In his statement, the applicants' son concludes by saying:

'Throughout this period, 2007 to 2009, I can confirm that many professional personnel "did not ask the right questions" and made unsubstantiated assumptions about what I told them: I was 15 years old at the time. My status concerning education, health and accommodation was possible because of this fact.'

1. On the basis of this information, it cannot be said that the respondent 'collected' personal information about the applicants through information provided by their son. Nor can it be said that the respondent 'held' personal information about the applicants in terms alleged by them. Hence, on the basis of the decision of the Court of Appeal in FM the alleged contravening conduct, as identified in paragraph 37 above, does not fall within the terms of the PPIP Act.

1. As the applicants have otherwise failed to identify conduct, which might amount to a contravention of an information protection principle of their personal information under the PPIP Act, I agree with the submissions of the respondent that the applicants' application for review under section 53 of the PPIP Act is not arguable, is misconceived and lacks substance. In making this finding I am not critical of the applicants. The events of 2008, concerning their son have clearly caused them considerable anguish and I appreciate they will be disappointed in the findings of the Tribunal. However, for the reasons I have stated, the Tribunal does not have jurisdiction to deal with the matters they have raised.

1. Accordingly, the appropriate order is to dismiss this application pursuant to subparagraph 73(5)(g)(ii) of the ADT Act.

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Decision last updated: 15 December 2011