CWS v NSW Department of Education - [2017] NSWCATAD 287 - NSWCATAD 2017 case summary — Zoe

CWS v NSW Department of Education - [2017] NSWCATAD 287 - NSWCATAD 2017 case summary — Zoe

Consideration

The applicants applied to the NSW Department of Education under the PPIP Act for an internal review of certain conduct which I will call "the original conduct". Following an internal review decision about the original conduct, the applicants applied to the Tribunal for a review of that conduct as permitted by s 55 of the PPIP Act. That provision states that: (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 Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the conduct that was the subject of the application under section 53.
The applicants became aware of additional conduct of the Department of Education, about which they felt aggrieved. That conduct can be summarised as relating to "ClassDojo" and "another Internet app". They sought to include the additional conduct in their application for review. The Department of Education submitted that because the additional conduct had not been included in the applicants' application for an internal review of the original conduct, the Tribunal did not have power to review it.
The applicants sought to rely on s 55(4) of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) as a basis for including the additional conduct in the Tribunal's review of the original conduct. That provision states that: 55 Making of applications (1) An application for an administrative review under this Act of an administratively reviewable decision may only be made by an interested person. (2) Subject to enabling legislation, an application is to be made in the time and manner prescribed by the procedural rules. Note: The fees payable for applications are also prescribed by the regulations under the Civil and Administrative Tribunal Act 2013. (3) If the interested person was entitled to seek an internal review of the administratively reviewable decision, an application may not be made unless the person has duly applied for such an internal review and the review is taken to have been finalised under section 53 (9). (4) However, the Tribunal may deal with an application for the administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that: (a) the applicant made a late application for the internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned, or (b) it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned.
In summary, the applicants submitted that the Tribunal could exercise its discretion to "deal with an application" about the additional conduct even though they had not applied for an internal review of that conduct. For the reasons I give below, s 55(4) of the ADR Act does not give the Tribunal power to deal with the additional conduct.
When reviewing conduct that is the subject of an internal review under the PPIP Act, the Tribunal is exercising its administrative review jurisdiction: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 28(2)(b) and s 30; BKM v Sydney Local Health District [2015] NSWCATAD 87 at [36]. That conclusion is supported by the following definition of an "administratively reviewable decision" in s 7 of the ADR Act: (1) An "administratively reviewable decision" is a decision of an administrator over which the Tribunal has administrative review jurisdiction. (2) For the avoidance of doubt (and without limiting subsection (1) or section 6): (a) the conduct of an administrator (or a refusal by an administrator to engage in conduct) is an administratively reviewable decision if enabling legislation identifies that conduct or refusal as conduct or refusal over which the Tribunal has administrative review jurisdiction, and (b) in its application to any such conduct or refusal by an administrator, any reference in this Act (however expressed) to an administrator making an administratively reviewable decision includes a reference to an administrator engaging or refusing to engage in the conduct.
A note to s 7 of the ADR Act states that: The jurisdiction conferred on the Tribunal by section 55 of the Privacy and Personal information Protection Act 1998 is an example of administrative review jurisdiction of the Tribunal over conduct.
The enabling legislation in this case is the PPIP Act and the relevant provision is s 55. Section 55(1) makes it clear that if a person applies to the Tribunal for an administrative review of conduct, that application is to be reviewed "under the Administrative Decisions Review Act 1997". But s 52(4) of the PPIP Act excludes s 53 of the ADR Act which relates to internal reviews: (4) Section 53 (Internal reviews) of the Administrative Decisions Review Act 1997 does not apply to or in respect of conduct to which this Part applies.
Section 53 of the ADR Act sets out the procedure for applying for and conducting an internal review.
The applicants gave two main reasons in support of their view that the Tribunal could exercise its powers under s 55(4)(b) of the ADR Act to review the additional conduct. The first was that s 52(4) of the PPIP Act only states that s 53 of the ADR Act relating to internal reviews does not apply. It does not say that s 55 of the ADR Act does not apply.
The second reason given by the applicants in support of their application was that the case law which supports the Department of Education's submission, interprets s 55(1) of the ADR Act as it was before amendments which came into force with the creation of NSW Civil and Administrative Tribunal on 1 January 2014. According to the applicants, the amendments made it clear that when applying to the Tribunal for an administrative review of conduct which had been the subject of an internal review by an agency, the application was "under the Administrative Decisions Review Act 1997".
An application for internal review under s 53 of the PPIP Act is a precondition to an administrative review by the Tribunal under s 55 of that Act. The Tribunal has held that the "scope of the application for internal review, reasonably construed, sets the parameters for the application to the tribunal": OD v Department of Education and Training (GD) [2005] NSWADTAP 74 at [12]; KO v Commissioner of Police (NSW) [2005] NSWADTAP 56 at [13]; Department of Education and Training v ZR (No 2) [2009] NSWADTAP 44 at [16]; ALZ v WorkCover NSW [2015] NSWCATAP 138 at [62]-[63]. It follows that the Tribunal has no power to review conduct unless a person had applied for an internal review of that conduct under s 53 of the PPIP Act: Department of Education and Training v GA (No 3) [2004] NSWADTAP 50 at [7]; Department of Education and Training v ZR (No 2) [2009] NSWADTAP 44 at [17].
While I accept that s 55 of the ADR is not expressly excluded by s 52(4) of the PPIP Act, s 55(4) does not arise for consideration in the context of an application under the PPIP Act. Applications under that legislation are different from applications under legislation where an administrator makes an administratively reviewable decision which is then subject to internal review. Under the PPIP Act, an application for internal review under s 53 of the PPIP Act is a pre-condition to an administrative review by the Tribunal under s 55 of that Act. The Tribunal has no power to deal with the additional conduct in this case because the applicants have not applied for an internal review in respect of that conduct. Section 55(4) does not give the Tribunal jurisdiction to do so.
Section 55 of the PPIP Act was amended by the Civil and Administrative Legislation (Repeal and Amendment) Act 2013 Sch 2.118 [6] - [8]. Even after those amendments were made, the Appeal Panel of the Tribunal has confirmed in ALZ v WorkCover NSW [2015] NSWCATAP 138 (10 July 2015) at [62], that: A key principle in privacy litigation before the Tribunal is that the scope of the proceedings is limited to the matters put in issue in the internal review process. As outlined in KO and KP v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 56 at [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 that 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 have the first opportunity, always, to deal with the matters of complaint.
Contrary to the applicants' submission, in circumstances where the Tribunal does not have jurisdiction, refusal to review the additional conduct cannot be a denial of procedural fairness.
Alternatively, the applicants request that the Tribunal, on its own motion, "put this issue before the Supreme Court as a question of law": Civil and Administrative Tribunal Act 2013 (NSW), s 54. I decline to do so because the legal principles I have outlined are well settled.