DQF v NSW Department of Communities & Justice

NCAT Administrative and Equal Opportunity|2021-04-16

REASONS FOR DECISION

On 8 July 2019 DQF wrote a letter to his landlord giving notice of his intention to continue his tenancy and advising his landlord how to contact him. DQF was on bail at the time and his passport and mobile phone had been seized by police. Three days later DQF landlord lodged a tenancy application at the registry of the NSW Civil and Administrative Tribunal (NCAT) seeking an order to declare DQF residential premises abandoned. The landlord's application to NCAT included DQF email address.
On 10 July 2019 an NCAT registry officer sent an email to DQF with two attachments, being a 'Notice of Conciliation and Hearing' and DQF landlord's tenancy application.
DQF is aggrieved by the fact that an NCAT registry officer used DQF email address for the purpose of effecting service without his consent.
On 30 September 2019 DQF applied for an internal review of the NCAT Officer's conduct, purportedly pursuant to s 53 of the Privacy and Personal Information Protection Act 1998 (PIPP Act).
On 2 November 2019 DQF received a response to his application by letter. The response indicated that DQF application for internal review could not be accepted as valid because there was no "jurisdiction to conduct an internal review under s 53." The respondent referred to and relied upon s 6 of the PIPP Act which is in the following terms: 6 Courts, tribunals and Royal Commissions not affected (1) Nothing in this Act affects the manner in which a court or tribunal, or the manner in which the holder of an office relating to a court or tribunal, exercises the court's, or the tribunal's, judicial functions. (2) Nothing in this Act affects the manner in which a Royal Commission, or any Special Commission of Inquiry, exercises the Commission's functions. (3) In this section, judicial functions of a court or tribunal means such of the functions of the court or tribunal as relate to the hearing or determination of proceedings before it, and includes - (a) in relation to a Magistrate - such of the functions of the Magistrate as relate to the conduct of committal proceedings, and (b) in relation to a coroner - such of the functions of the coroner as relate to the conduct of inquests and inquiries under the Coroners Act 2009.

The "judicial functions" of NCAT

In BCR v Consumer, Trader & Tenancy Tribunal [2014] NSWCATAD 79 ("BCR") Senior Member Montgomery rejected a comparable application under the PIPP Act for want of jurisdiction. In BCR the applicant was aggrieved because the CTTT sent some of his personal information to his landlord in the course of a tenancy proceeding.
Senior Member Montgomery helpfully analysed the tribunal's earlier decisions in LG v Attorney Generals Department of NSW [2009] NSWADT 141, N (No. 2) v Director General, Attorney General's Department [2002] NSWADT 33 and NZ v Attorney-General's Department [2005] NSWADT 103 and ultimately found at [45]-[50]: In my view, the provision of information relevant to the matter to be determined by the CTTT, to a party to the proceedings, is exercising a function relating to the judicial functions of the CTTT. I have set out above passages from a number of decisions that have deal with the concept of a court or tribunal's "judicial functions". It is clear from those decisions that the words 'relate to' in section 6 of the PPIP Act 'have a broad meaning and denote a wide connection between the conduct of interest and the activity of hearing and determining proceedings'. In N (No 2) v Director General, Attorney General's Department the President held that communications from professional representatives are necessary to the efficient conduct of a claim, and the function of giving access to those communications falls within the scope of those functions that 'relate to the hearing and determination of claims'. In NZ v Attorney-General's Department the President held that where the applicant's personal information was found in documents lodged with the registry, the function of giving access to the documents, and to the personal information they may contain, is a function that 'relates to' the exercise by the Court of its judicial functions. In my view, the circumstances of this matter are comparable to those matters in that the Applicant's personal information was found in documents lodged with the CTTT along with the covering letter. The provision of the covering letter to the landlord was necessary to the efficient conduct of the claim that was to be determined by the CTTT. The function of giving access to the covering letter is a function that 'relates to' the exercise by the CTTT of its judicial functions. The Applicant's personal information was released as part of that function. The conduct of releasing the documents occurred as part of the activities of preparing the matter for determination in the CTTT. It follows, in my view, that the registry officer was exercising a function relating to the judicial functions of the CTTT when they released the Applicant's documents to the landlord. The fact that the Applicant's personal information was released in error does not alter this situation. In my view, the Tribunal does not have jurisdiction to hear BCR's review application. Accordingly, the application should be dismissed.

DQF's case

DQF's arguments do not directly challenge the correctness of the reasoning in BCR. That said, DQF urges the tribunal to come to a conclusion that is, in substance, contrary to BCR.
DQF has raised several arguments about the construction and operation of the PIPP Act. As will become apparent below, I do not find in DQF's favour on any of his arguments and I find that the application must be dismissed for want of jurisdiction. I will try to explain each of DQF's arguments and why they are not accepted.

Administrative v judicial functions

Firstly DQF argued in his original application that: 1. judicial functions are generally understood to be the use of power, authority or duty of courts or tribunal to interpret and apply laws to specific cases; and 2. administrative and non-judicial functions of courts or tribunals fall outside the exclusion in s 6 of the PIPP Act; and 3. the information protection principles in ss 8-19 of the PIPP Act apply to administrative and non-judicial functions.
The fundamental difficulty with this argument is that the exclusion found in s 6 of the PIPP Act is not limited to "judicial functions" insofar as "judicial functions" might generally be understood.
The definition of "judicial functions" in s 6(3) is very broad and extends far beyond what might generally be understood to be judicial functions. Stripping away those parts of the definition that are irrelevant to this Tribunal, the definition of judicial functions in s 6(3) reads as follows: In this section, judicial functions of a … tribunal means such of the functions of the … tribunal as relate to the hearing or determination of proceedings before it."
If DQF's argument is correct then one would expect the words in s 6(3) to have been more precise, and refer to the judicial functions that relate to the hearing or determination of proceedings before it.
In his written submissions DQF refers to the separation of powers between the judiciary and the executive arms of government and refers to a law society journal article published in 2002. As best as I can glean it, DQF referred to these matters in order to submit that administrative functions connected to judicial functions (which may or may not be a reference to the judiciary arm of government as opposed to judicial functions as defined in the PIPP Act) should not be immune from scrutiny under legislation. These matters don't advance DQF's argument any further. If one accepts that parliament has excluded, by the use of very broad terms, certain functions of a tribunal from the PIPP Act, then it doesn't really matter whether Parliament could have made the exclusion narrower.
In his application DQF secondarily submitted that "there are a few issues must be carefully considered with respect to whether every function discharged by a court or tribunal, or the holder of an office relating to a court or tribunal, is exempt from compliance with the relevant information protection principles."
Accepting for the sake of argument that officers of tribunals might perform functions that are not related to the determination of proceedings before it, it is difficult to see what those functions might be. Regardless of where the precise outside boundaries of the tribunal's excluded functions might be, the function of receiving and using an email address to advise a respondent of the receipt of an application is squarely within the range of functions that relate to the hearing or determination of proceedings before the Tribunal.

Not lawfully authorised or required

In his application DQF also argued that the service of a document by email was not an act that the respondent was lawfully authorised or required to do (see s 25 of the PIPP Act). In light of the findings above it is not necessary to determine whether s 25 applies to the conduct about which DQF complains.

Incorrect rejection at internal review

In his written submissions DQF seems to submit that the respondent was required to accept his application for internal review because: "The PIPP Act is silent in relation to an applicant not meeting the requirements prescribed by section 53(3) for making an application. The concept of an invalid application is so foreign to the PIPP Act that the word invalid is not found anywhere in its text."
Section 53 of the PIPP Act has two key functions: it confers an entitlement to ask for a review, and it requires public sector agencies to conduct reviews.
Sections 52 and 53 of the PIPP Act must be read together because the conduct by an agency that can be reviewed under s 53 is limited to only conduct referred to in s 52. Sections 52 and 53 are relevantly in the following terms: 52 Application of Part (1) This Part applies to the following conduct - (a) the contravention by a public sector agency of an information protection principle that applies to the agency, (b) the contravention by a public sector agency of a privacy code of practice that applies to the agency, (c) the disclosure by a public sector agency of personal information kept in a public register. (2) A reference in this Part to conduct includes a reference to alleged conduct. (3) This Part does not apply to any conduct that occurred before the commencement of this Part. (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 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) … (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 …. (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…
If s 6 of the PIPP Act applies to the sending of the initial notices by an NCAT Registry officer, then that conduct is not conduct about which DQF can make an application for internal review under s 53, because it can never fall within the conduct described in s 52.
That is, if the information protection principles do not apply to the functions in question, then it is not possible for the respondent to contravene them. Recognising that under s 52(2) conduct can include "alleged conduct", there is no conduct, be it alleged conduct or actual conduct, that can be the subject of review.
Dealing directly with the argument advanced by DQF, his application for an internal review was not valid because the conduct about which he is aggrieved is not conduct that he could ask to be reviewed, nor was it conduct that the respondent was required to review.
It does not matter whether the legislation refers to invalid applications or not. The legislation facilitates the making of valid applications only, and only requires agencies to conduct reviews if a valid application is made.

S 10 and s 16 take precedence

DQF further submitted that "[the respondent's] response did not address any obligations prescribed by sections 10 and 16 of the PPIP Act which must take precedence to the exercise of any judicial functions." This construction is simply not available by the terms of the statute. The words "nothing in this act" in section 6 render the balance of the Act subject to the exclusion contained therein.

Failure to Notify the Privacy Commissioner

The respondent did not notify the Privacy Commissioner that it had received DQF's application for internal review. DQF submits that the respondent had no discretion to postpone or avoid notifying the Privacy Commissioner of the application.
This submission is as problematic as the submissions referred to above, insofar as it relies upon DQF's original application being validly made - which in turn relies upon the conduct about which he is aggrieved being conduct that contravenes, or even allegedly contravenes, an information privacy principle.
This argument must also be rejected.

Pre-judicial functions

Finally, DQF also put the following argument in his written submissions: "I admit that the Tribunal's service of notices could be understood as a judicial function, but my argument goes along the lines that administrative support staff of the Agency's Courts, Tribunal and Service Delivery Branch must 'before or shortly after' collection notify the person to whom the information relates, regardless of any action or inaction by NCAT. The fact that notification must take place prior to collection means that no judicial functions are yet undertaken. The same argument applies to the compliance with section 16 (IPP9) because an agency that holds personal information must ensure that the information is relevant, accurate, up to date, complete and not misleading before using it. As such, not affecting the manner in which the Tribunal exercises its functions."
This submission, and DQF's distinction between his circumstances and BCR, is nuanced but ultimately flawed.
In effect DQF's submission is that there is a conceptual interim period between the receipt of an application containing personal information about a respondent (in the present case an application made by DQF's landlord) and the serving/sending of the application to the respondent.
As I understand the argument, during the interim period the respondent is holding personal information and therefore attracts an obligation, before it does anything else, to ensure that the information is relevant, up-to-date and so on.
This interpretation, if it was correct, would render the exclusion in s 6 practically inoperable. If the exclusion only applied during periods of activity (DQF's argument being during periods where judicial functions are performed) then the balance of the provisions of the Act would apply during periods of inactivity. This distinction is artificial and illusory. For example, if the only functions performed by NCAT officers were judicial functions, then one cannot count the moments in between performing judicial functions as being outside of the exclusion.
Further, it is quite conceivable that the provisions of the PIPP Act, if they did have application during periods of inactivity, would require actions that would "affect the manner in which a court or tribunal .. exercises its functions" during periods of judicial activity.

Conclusion

For the above reasons I find that the conduct about which DQF is aggrieved, being the use of his email address by an NCAT registry officer to serve papers, was a judicial function within the meaning of s 6(3) of the PIPP Act.
The consequence of this finding is that I also find that DQF was not entitled to make an application under s 53 of the PIPP Act for an internal review of the conduct, nor is he able to make an application for external review of the conduct under s 55.
Accordingly, DQF's application for an external review is dismissed.

Orders

The application for an external review is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 20 April 2021 - Amended Case Title 15 September 2021 - Anonymised Applicant name through decision 15 September 2021 - Restricted DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 September 2021

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