Z v NSW Department of Education and Training (No 2)

[2010] NSWADT 238

CITATION:	Z v NSW Department of Education and Training (No 2) [2010] NSWADT 238 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	General Division
PARTIES:	APPLICANT Z RESPONDENT NSW Department of Education and Training
FILE NUMBER:	083159
HEARING DATES:	27 April 2010
SUBMISSIONS CLOSED:	6 July 2010
DATE OF DECISION:	7 October 2010
BEFORE:	Wilson R - Judicial Member
CATCHWORDS:	Amendment of records under the Freedom of information Act 1989 - meaning of relevant employment proceeding in s.33 Commission for Children and Young Persons Act 1988.
LEGISLATION CITED:	Freedom of Information Act 1989 Commission for Children and Young Persons Act 1988,
REPRESENTATION:	APPLICANT In person RESPONDENT S Bilbie-Taylor, solicitor
ORDERS:	1. The decision under review is set aside and in lieu thereof the respondent is directed to endorse the review document, against the applicant’s name, with the notation as follows: Notation removed as per Appeal Panel decision in Z v Department of Education and Training(GD)[2011] NSWADTAP 26

REASONS FOR DECISION

1 The applicant commenced these proceedings pursuant to the Freedom of Information Act 1989 together with other proceedings (being matter number 073125), also under that Act. These other proceedings were finally determined by withdrawal. The current proceedings though proceeded to final determination by the Tribunal. During interlocutory stages, and between the hearing days, the parties engaged in extensive negotiations with the consequence that they have been able to bring this matter for hearing on a single precisely determined issue. This issue will become apparent during the following discussion, however, in summary, the parties were able to reach a stage where they have asked the Tribunal to determine whether certain records maintained by the respondent, which pertain to the applicant, should be amended, to some degree at least. The parties should be commended for their efforts in this regard.

2 Following hearing and submissions the Tribunal reserved its decision on 28.08.09. However, during deliberation it became apparent that a critical factual issue had not been adequately addressed in the evidence. Consequently, the Tribunal delivered an interlocutory determination on 28.01.10 so as to enable the parties to consider this issue and to take any further steps as they should be so advised. A directions hearing was convened on 27.04.10 and further time was allowed for the parties to file further evidence and submissions in point should they wish to do so. The applicant filed further extensive submissions on 11.06.10 (becoming exhibit A3) and, as they were late, the respondent sought and extension of time to 06.07.10. On 21.06.10 the respondent advised that it did not intend to file further submissions. Subsequently, the Tribunal’s ultimate decision was reserved on 06.07.10.

3 The facts and issues are set forth in the Tribunal’s earlier determination. Essentially, they are as follows. The applicant is a former employee of the respondent having been engaged in duties at one of the respondent’s teaching facilities, initially full time and then as from 01.02.93 on a casual basis. In 1992 certain events occurred which involved the applicant and persons connected with the facility at which he was then engaged. These events lead, inter alia, to criminal charges being laid against the applicant, which were eventually prosecuted. On 12 December 1996 the applicant, in the District Court of New South Wales, was convicted of a criminal offence arising from these events but, on 6 July 1997, his conviction was overturned on appeal and a verdict of not guilty was entered. He therefore has no criminal convictions recorded against him after the date of the appellate judgment.

4 At the time that the applicant commenced these proceedings, the respondent maintained a number of records which pertained to the applicant. These proceedings are concerned with two particular types of records, only one of which is the subject of an amendment application. Other records maintained by the respondent concerning the applicant, which at earlier times were in issue, are not now material to these proceedings, including the checklist which appears in exhibit R1 at tab ‘A’. The first of these two now relevant documentary records was, and still is, a record which lists the names of persons who are ineligible for employment with the respondent. The applicant’s name appears on that list (referred to herein as the not to be employed list). The respondent has in place a procedure whereby persons may be placed on this list on the one hand, or removed from it on the other. The applicant has made application to the respondent to have his name removed. However, the applicant does not seek amendment of this particular record in these proceedings although it requires mention by reason of the fact that it is raised in the parties’ submissions.

5 The second of these two particular records is a document headed Review of Notification, a partial copy being exhibit A1 (referred to herein as the review document). This document, it appears, may have come into being as part of a review process whereby the respondent, perhaps from time to time, reviews the position of persons that it has notified under protective legislation, currently being the Commission for Children and Young Persons Act 1988 (referred to herein as the Commission Act). Alternatively, it may have come into being following a review conducted in 2004, the precise position being unclear on the evidence. However this may be, the applicant’s name appears on this record at item 116 and certain information is there recorded against his name. The applicant argues that this information is incorrect or otherwise misleading and is seeking to have it amended pursuant to s.39 Freedom of Information Act 1989. The applicant does not seek to have his name removed from the list but rather wishes the information contained in two of the last three vertical columns to the right of the page to be changed. The first of these columns has a tick in the “yes” box, whereas the applicant argues that the “no” box should be ticked or, alternatively, that both boxes be left blank. The second vertical column requires no change, both boxes being blank. The third column has no box checked, whereas the applicant says that the “yes” box should be ticked, although leaving both boxes blank would be an acceptable outcome to him. It is this particular entry in this document that is under review in these proceedings.

6 The review document as it now stands informs a reader that the matter (to which the entry refers) is a relevant employment proceeding and that it should remain in category 1. However, if it is amended as the applicant requests, the entry against his name will inform a reader that the matter is not a relevant employment proceeding. There is no description in the record as to what the matter precisely is, save that it is said to have been completed on 25.02.97. This date falls within the period between the applicant’s conviction and his appeal.

7 It is common ground that the issue for determination is whether or not the entry against the applicant’s name in this record is incomplete, incorrect, out of date or misleading. If it is, then amendment is apposite. If it is not, then amendment in accordance with the application may be refused (s.44(a) Freedom of Information Act 1989). The respondent accepts that the s.39(a) and (b) requirements are met, and there is no doubt that the applicant believes that the entry is incorrect in fact and in law, as s.39(c) requires, and thus he is able to make the application validly. However, the critical subsection is s.44(a) rather than s.39(c), the question being whether the facts satisfy this particular subsection. This question directs attention to the provisions of the Commission Act. Earlier versions of the legislation will require brief consideration in due course as, prior to 10.12.03, they referred to relevant disciplinary proceedings rather than relevant employment proceedings, although the applicant has submitted that this change is not material.

8 The relevant provisions are contained in Part 7 of the Commission Act. Section 39 of information concerning an employee upon the completion of any relevant employment proceedings that have been taken against the employee, unless certain findings have been made that are favourable to the employee, speaking generally. This is only one of the protective mechanisms that the Act employs. Section 43 of the Act, it should be noted, enables the applicant to bring this present application. Section 43A enables an employer to amend or withdraw a notification under s.39.

9 A relevant employment proceeding is defined, in the current Act, as proceedings which review the professional conduct of an employee involving reportable conduct, such as sexual misconduct or violence towards a child, ill-treatment to or neglect of a child and causing psychological damage to a child (see relevant definitions in s.33 of the Act).

10 The applicant’s position is that at no relevant stage has any such proceedings been commenced in relation to him, let alone completed (exhibit A2 paragraph 23). His submissions distinguish the several reviews, actions and “investigations” that have occurred over the years and argue that none of these factual events amount to a relevant employment proceeding. For example, he argues that the reviews following his application to have his name removed from the not to be employed list do not amount to a relevant employment proceeding (see exhibit A2 paragraph 24 and exhibit R1 annexure F).

11 The respondent’s position is that the critical time is the present, the document in question being a review of a notification. Therefore the document speaks as from the date of its creation, which is unknown, until the present time. The critical time therefore is not the time when the applicant’s name, and associated information, was first reported (see exhibit A2 appendix L). Further, the definition of relevant employment proceeding is broad and it should not, the respondent argues, be confined to procedures involving formal hearings and detailed submissions and argument. Any action taken by an employer to investigate the suitability of an employee with a view to dismissal, or with a view to future employment, would suffice provided the several elements of the definition are satisfied. Given this, the respondent submits, procedures and investigations have in fact occurred in the past which would amount to relevant employment proceedings on the proper construction of the provision in question. It is argued, for example, that the steps leading up to placing the applicant’s name on the not to be employed list was such a proceeding. To this should be added the fact of the respondent’s decision to dismiss the applicant from casual employment, which the respondent alleges occurred on 17.12.96 (exhibit R1 tab I). The respondent also relies upon the reconsideration process following the applicant’s acquittal of the criminal charges, culminating in the letter to the applicant dated 13.03.01, whereby a determination was made that grounds, other than the applicant’s initial conviction at first instance, sufficed to support the notification (exhibit R1 paragraphs 18, 19 and 20; exhibit A2). However, there was no evidence before the Tribunal to enable a finding that these other grounds were considered at any earlier point in time, in particular at some time prior to the critical date of 25.02.97. Further, a review of the reporting of the applicant’s name was undertaken sometime in 2003 and, again, in 2005 (exhibit A2 appendix K) either of which may amount to a requisite proceeding, although this will depend upon the relevant time frame.

12 It should be noted that the issue is only whether the record is incorrect, misleading or out of date. The Tribunal is not a court of law and it cannot change the fact that notification of the applicant’s name has in fact occurred. The Tribunal is only empowered by the legislation to direct amendment of the record under review, if amendment be appropriate: it has no general declaratory powers. The Tribunal is, of course, entitled to decide, in these proceedings, whether or not a relevant employment proceeding (or a relevant disciplinary proceeding) has occurred, but only for the purpose of deciding whether amendment of the record under review is apposite.

13 The positions adopted by the parties invite the Tribunal, first to determine what the matter is to which this record refers and, secondly, to consider whether this matter is, or is not, a relevant employment proceeding under the current legislation. However, whilst much of the attention of the parties was directed towards this second issue, it cannot, for the reasons set forth below, be determined on the evidence presented. Despite this complication, the proceedings are still capable of final resolution.

14 As to the first issue, as noted above, the review document only contains very limited information identifying the relevant matter. It is said, in the document, to have been a matter that was completed on 25.02.97. Therefore the relevant matter must have existed (or occurred) prior to that point in time. On the evidence before the Tribunal there are only three material events occurring before this date. The first is the applicant’s conviction on 12.12.96. The second is the determination that the applicant was not eligible for employment with the respondent (referred to in submissions as a determination to place the applicant’s name on the not to be employed list) on 17.12.96, his name being placed on the list on 20.12.96 (exhibit A2 appendices A, H and K), this being by reason of the applicant’s conviction (exhibits A2 appendix A and R1 tab I). The third is said to be the dismissal of the applicant from employment effected by the same letter of 17.12.96 (exhibit A2 appendix A, exhibit R1 tab I). However, it was not until 07.12.00 that the applicant’s name was reported to the Commission following the introduction of relevant reporting legislation having a retrospective compass (exhibit A2 appendix K). Therefore the review document, or one of its earlier variants under then current legislation, itself cannot have come into existence prior to 07.12.00.

15 Since 07.12.00 the records maintained by the respondent concerning the reporting of such matters will have referred to relevant disciplinary proceedings until the change to relevant employment proceedings effected in 2003. As the review document refers to relevant employment proceedings it can only be a record (in its present form) that came into existence after such legislative changes, even if no more was done than change the phrase appearing in the headings of the columns. Therefore this particular document is a record kept under the current Commission Act: it purports to be no more than this. Consequently, there is no need to address any issues arising under earlier legislation. The respondent does not presently maintain any earlier record about the applicant in the form that it would have taken under previous legislation.

16 However, the relevant employment proceeding to which the review document refers is one that was completed on 25.02.97. As noted above, there are only three possible events that qualify for this referral, namely the conviction, the listing and the dismissal. The latter two being of course based upon the first, as the evidence clearly shows. It is not possible to determine which of these three events the review document is referring to on the evidence before the Tribunal. Whilst the respondent submitted that the applicant’s name was in fact placed on the not to be employed list on 24.02.97 (exhibit R1 paragraph 8) the evidence shows the date as being 20.12.96 (exhibit A2, appendix H). The Commission itself does not possess any relevant evidence that assists in this regard (exhibit A2 appendix L). However, whichever of these events is the material one, it is quite clear that the review document does not in fact record, or in any way reveal, the fact that the applicant’s conviction was overturned on appeal and a verdict of not guilty entered in his favour. This fact is material to whichever event is in fact referred to in the review document so that its omission clearly makes the information recorded in the document both incomplete and out of date. The question being addressed here is not whether the reporting of the matter was, or was not, justifiable either at the time it was reported or as at the present day. Rather, the question is whether the review document contains information about the applicant that requires amendment in one way or the other. Whichever of the three possible events is in fact the matter reported, the applicant’s conviction is central to each. In this regard there has clearly been a change in the material circumstances given the outcome of the applicant’s appeal. This change is not revealed in the document and therefore, as it stands, the information about the applicant contained therein is both incomplete and out of date and amendment is appropriate, for these reasons alone.

17 The second question argued is whether relevant employment proceedings ever took place. If they did not then, the applicant argues, the review document contains information that is incorrect or misleading in that it represents, incorrectly, that a matter in fact occurred which constitutes a relevant employment proceeding for the purposes of the Commission Act. As noted above there are only three factual events that occurred, prior to 25.02.97, which could possibly be the matter to which the review document refers. The criminal proceedings against the applicant, and his conviction, must be excluded from consideration on this point as they were not taken by the respondent, being in law proceedings commenced by the Crown in right of the State of New South Wales.

18 However, both the determination as to ineligibility for employment (the associated listing of his name on the not to be employed list) and the determination as to dismissal were in fact acts done by the respondent, qua employer. Both determinations involved reportable conduct within the definition of that term in s.33 of the Commission Act, given that they were both based upon the criminal conviction for sexual assault upon a child that had been entered against the applicant at that stage. As to both these matters, the applicant essentially argues that neither determination has the attributes necessary to constitute the processes involved as a proceeding, as the Act requires (exhibit A3 paragraph 33 for example). The same approach was taken at hearing in oral submission. This argument envisages that the requisite process is one where allegations are formally made and substantiated and a defendant is given an opportunity to answer such allegations by way of evidence and submission.

19 Pursuant to s.39 of the Commission Act and employer is required to notify the Commission of any relevant employment proceedings that have been completed, save for certain exceptions that do not apply here. The definition of relevant employment proceedings in s.33 of the Act suggests two points of construction. First, that some employment proceedings may not be relevant, even though they may involve reportable conduct (as defined) or violence in the presence of a child. This appears to make little sense however. The better view is that this is not an appropriate distinction to draw here, with the consequence that the word relevant does no more than draw specific attention to the proviso that the proceedings, to be relevant, must involve reportable or violent conduct involving a child. The second, is that the scope of employment proceedings is necessarily wider than disciplinary proceedings. This is suggested by the inclusion of the latter in the former in the current definition and by the legislative change from disciplinary proceedings to employment proceedings. This construction is in keeping with the objects of the legislation. Therefore a decision to dismiss an employee summarily, as well as a decision to bar that employee from future employment, as a matter of law may well amount to relevant employment proceedings, provided of course that reportable conduct is involved or there has been violence in the presence of a child. Both types of action involve steps taken by an employer in relation to the employment status of an employee. The legislation should be so construed. Consequently, the acts of the respondent in dismissing the applicant and determining that he was ineligible for future employment could amount to the bringing of a relevant employment proceeding, provided of course that the other elements required by the legislation are satisfied.

20 However, the problem in this matter is that there are three different events any one of which could be the matter to which the review document refers. As stated above, one of these events, namely the trial and conviction, cannot be a relevant employment proceeding whereas the other two could. Unless the Tribunal is able to determine which of these three events is the relevant matter, or is unable to exclude the applicant’s conviction from consideration as possibly being the relevant matter, the Tribunal cannot properly determine whether or not the review document is incorrect or misleading. The evidence does not persuade the Tribunal that it can properly arrive at any such determination. As noted earlier, there is no evidence on this point apart from the review document itself and the Commission’s records that are in evidence are unable to take the matter further. Consequently, the Tribunal is unable to reach any determination that no relevant employment proceeding has occurred and therefore cannot find that the review record is incorrect or misleading on this particular ground. Equally, for the same reasons the Tribunal is unable to determine that the matter referred to in the document is a relevant employment proceeding, as the respondent argues.

20 The applicant submitted that neither the process of determining that he was ineligible for future employment nor the process of bringing about his dismissal could amount to a relevant employment proceeding (exhibit A3). The arguments presented are wide ranging but, in essence, the point being made was that both processes involved unilateral determinations by the respondent rather than procedures wherein the applicant was given the opportunity to respond to allegations in an appropriate way before relevant decisions were made. The part played by the general law rules of natural justice, for example, was relied upon by the applicant in developing this construction of the legislation. There is certainly logic in this submission. However, the change in the legislation from relevant disciplinary proceedings to relevant employment proceedings requires a broader interpretation of the latter term so as to include steps taken in connection with employment, even if they are unilateral steps on the part of the employer. Clearly, a determination by an employer to dismiss, as well as one to never employ again in the future, has the requisite connection. This is in keeping with the relevant legislation in that the existence of a relevant employment proceeding does no more than condition the duty to notify. Consequently, this argument put by the applicant cannot succeed.

21 The Tribunal notes that whilst the respondent also relied upon several investigations and determinations that occurred after 25.02.97, these arguments cannot succeed as the review record itself identifies the relevant matter as being one that was completed as at 25.02.97. Again, the Tribunal notes the question is whether the record requires amendment: it is not whether the reporting of the applicant’s name can be justified either now, or when it was so notified, without regard to the fact that the document identifies the matter as having been completed on 25.02.97.

23 In deference to the respondent’s submissions, one particular argument should be specifically noted. As noted at paragraph 11 above, the respondent relied upon the reconsideration process following the applicant’s acquittal of the criminal charges, culminating in the letter to the applicant dated 13.03.01, whereby a determination was made that grounds, other than the applicant’s initial conviction at first instance, sufficed to support the notification (exhibit R1 paragraphs 18, 19 and 20; exhibit A2). However, even if this process itself amounted to a relevant employment proceeding it cannot be the matter referred to in the review document as it is an event which occurred well after the critical date.

22 The question then becomes the appropriate amendment to be made by reason of the Tribunal’s determination at paragraph 16 ante. An appropriate notation is as follows:

Notation removed as per Appeal Panel decision in Z v Department of Education and Training(GD)[2011] NSWADTAP 26

Such notation will bring the respondent’s records into accord with the factual circumstances pertaining to the matter referred to in the review document. It will not of course reflect the respondent’s current view, since 13.03.01, that other grounds make a reporting apposite, but this is a separate matter. As noted, there is no evidence that any such grounds were in fact considered prior to 25.02.97 so as to give these grounds some relevance to the matter referred to in the review document. Consequently, the decision under review is set aside and in lieu thereof the respondent is directed to endorse the review document, against the applicant’s name, with the notation just stated.

20/07/2011 - Notation removed as per Appeal Panel decision in Z v Department of Education and Training(GD)[2011] NSWADTAP 26 - Paragraph(s) Coversheet orders, paragraph 22