FVR and FWA v Department of Education

The review application

1. In their application to the Tribunal for review of the privacy internal review decision, the applicants raise concerns about how the respondent has dealt with their complaint. In particular, they are aggrieved that their initial complaint was not dealt with as a privacy complaint but rather was dealt with by the PES.
2. The applicants also raise issues in their review application about their treatment by the respondent dating back some seven years. In addition, they refer to a conversation between the Principal and the job applicant in February 2023 during the PES investigation which they allege is a further breach of their privacy.
3. In relation to the primary complaint - what was allegedly said at the job interview in October 2022 - the applicants strongly argue that there has been a breach of the PIPP Act and the HRIP Act. They each seek $40,000 in damages. Over the course of the proceedings they have also sought another range of orders from the Tribunal. They also seek an order requiring the respondent, in effect, to pay each of them a lump sum to compensate them for psychological and physical injuries suffered as a result of the respondent's conduct, loss of reputation and loss of earnings. As claimed, this would appear to amount to several million dollars.

The Tribunal's jurisdiction and scope of the review

1. Under s 55 of the PIPP Act an aggrieved person may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (ADR Act) of conduct of an agency. One of the preconditions to the Tribunal exercising its review powers is that there has been an internal review by the agency under s 53 of the PIPP Act. As set out in s 52 of the PIPP Act and s 21 of the HRIP Act, the "conduct" of an agency that may be reviewed is: 1. the contravention by an agency of an information protection principle (IPP) or health privacy principle (HPP) that applies to the agency, 2. the contravention by an agency of a privacy code of practice that applies to the agency, 3. the disclosure by an agency of personal information kept in a public register.
2. Of relevance in this matter is (a), that is, whether the agency has contravened a HPP. The HPPs apply to "health information", a subset of personal information, which is defined in s 6 of the HRIP Act. It is accepted that a person's COVID-19 vaccination status, including whether or not a person had a medical exemption at the relevant time, constitutes health information as defined in s 6 of the HRIP Act. It is also accepted that referring to a person as an "antivaxxer" can be construed as disclosing the person's status as unvaccinated.
3. That the Tribunal has jurisdiction to hear and determine the applicants' application is not disputed.
4. The role of the Tribunal on administrative review is to decide the correct and preferable decision having regard to the material before it, including any relevant factual material and any applicable law: ADR Act s 63(1).
5. In this review, my task is to make findings, based on the material before the Tribunal and the relevant provisions of the PIPP and HRIP Acts, whether the conduct the subject of the applicant's internal review application is conduct by the respondent that contravenes HPP 10 (use) and/or HPP 11 (disclosure). HPP 10 prohibits an agency from using health information for a purpose other than the purpose for which it was collected, unless an exception applies. HPP 11 prohibits an organisation from disclosing health information for a purpose other than the purpose for which it was collected, unless an exception applies.
6. As to what remedy may be available to the applicants, s 55(2) of the PPIP Act provides that "on reviewing the conduct of the public sector agency concerned" the Tribunal may decide to take no further action on the matter, or make an order of the kind prescribed in paragraphs (a) to (g) of that section.
7. The first step, however, is to determine whether there has been a contravention of the HPPs. The legislation does not attribute an onus of proof to any party in privacy matters. It has been consistently held, however, if the Tribunal is "left in a state of uncertainty in relation to a fact in issue, that fact should be decided against the applicant": KP v Narrandera Shire Council [2011] NSWADTAP 15 at [31]; BYW v Commissioner of Police, NSW Police Force [2015] NSWCATAP 270 at [7].
8. As to the scope of the Tribunal's review, the Tribunal has jurisdiction to review "the conduct that was the subject of the application" under s 53. Consequently, the Tribunal cannot review any conduct that was not the subject of the application to the agency: Department of Education and Training v GA (No 3) [2004] NSWADTAP 50 at [7]; Department of Education and Training v ZR (No 2) (GD) [2009] NSWADTAP 44 at [17]. The scope of the application for internal review, reasonably construed, sets the parameters for the application to the Tribunal and an applicant cannot, after the application has been dealt with by the agency, widen the scope of the process: OD v Department of Education and Training [2005] NSWADTAP 74 at [12]-[14].
9. In KO v Commissioner of Police (NSW) [2005] NSWADTAP 56 at [13]-[14] the Appeal Panel stated: 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. 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 … 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 a detailed recitation seeking to bring into play many, or every one 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.
10. As noted above, in their review application the applicants raise a number of matters dating back some seven years, most of which do not involve any breach of privacy allegations. They also appear to seek review of process issues concerning their initial complaint to the respondent which was dealt with by PES. These are not matters within the scope of this review application which is confined to the conduct the subject of the privacy internal review.
11. In the course of these proceedings, the applicants state that the Principal was involved in a further breach of their privacy when, in May 2022 when they contacted her about returning to work, she communicated their vaccination status to the Head Teacher Admin. That is not a matter, however, within the scope of this review.
12. Similarly, insofar as the applicants seek to raise a matter concerning a conversation between the Principal and the job applicant in February 2023 during the PES investigation which they allege is a further breach of their privacy, that matter was not included in the internal review application made by the applicants. Indeed, the applicants appear not to have been aware of the conversation until finalisation of the internal review application in September 2023. It is not open to the applicants to include this new matter in this review application which at the date of the hearing before me, had not been subject to any internal review by the respondent.
13. At the hearing the applicants were insistent that the conduct of the PES investigation was within the scope of this review. This appears to relate to the emails to the Secretary of the Department in which they referred to breaches of the "Federal Privacy Act" and the responses to the emails. As I understand it, the applicants believe that their reference to Federal privacy law should have triggered a privacy internal review by the Department. It is not clear why this would be so when it appears FVR's original complaint as discussed with the PES Investigator was primarily based on breaches of the Code of Conduct, the PES investigation was ongoing, no reference was made to state privacy legislation and no request for a privacy internal review was made. In any event, no such internal review was undertaken at that time and, as was clearly conveyed by the Tribunal member who dealt with the first review application, the Tribunal lacked jurisdiction to deal with any privacy review application for that reason. It was then up to the applicants to make such an application if they so chose and which they then did.
14. Even if it could be said that the respondent should have been alert to the privacy complaint at the time and should have conducted a privacy internal review in the absence of any request from the applicants to do so, that does not broaden the scope of this review to the conduct surrounding the PES investigation or what happened in relation to the first Tribunal application or the privacy internal review itself.
15. The applicants critique the methodology and findings of the privacy internal review the subject of this application. The role of the Tribunal, however, is to make a fresh decision based upon the evidence before it, not to identify errors in the internal review.
16. The scope of this review is confined to that set out in the applicants' application for internal review and repeated in [1] of these reasons.

Evidence before the Tribunal

1. The applicants' evidence is set out in various documents and in oral evidence before the Tribunal. During the course of the proceedings the applicants have provided various statements/submissions which contain some factual material along with speculation as to the actions and motivations of others and submissions as to the desired outcome of the proceedings. They have also provided copies of various policy documents of the respondent along with other material relevant to their application.
2. The respondent's evidence is contained in affidavits signed by the Principal and Head Teacher and in oral evidence given by them at the hearing. The job applicant also gave oral evidence at the hearing. In addition, the respondent relies upon records of interview with the Principal and the job applicant during an investigation carried out in relation to the first Tribunal application. The applicants make some objection to the inclusion of these records as the interviews were conducted prior to the privacy internal review. The interviews, however, canvas the same issue that was the subject of the privacy internal review and are entirely relevant to it. I also note the applicants rely upon notes of conversations between the job applicant and an officer from PES during that investigation. That information is also clearly relevant to the issues in this application.
3. FVR states that on 12 February 2023 he had given the job applicant a lift to the school at which they both were working. FVR goes on to state the following then occurred: During the course of the 40 minute drive [the job applicant] began behaving in an anxious manner and said, "I don't want to trigger you, but ….". I encouraged him to proceed. [The job applicant] went on to say he'd had an interview involving [the Principal] and [the Head Teacher] in which he was asked whether he knew me. [The job applicant] expressed the view that the fact that he had referenced working at [the school] might have caused [the Principal] to make that connection with me. He then said [the Principal] had described both [FWA] and myself as "anti-vaxxers who would not work at [the Principal's school] again". [The job applicant] said that [the Principal] then paused and asked, "he's not a friend of yours is he?", to which [the job applicant] replied he wasn't. [The job applicant] was somewhat embarrassed he'd denied our friendship, apologised and I said I understood under the circumstances. On return home that day I gently probed him again and [the job applicant] affirmed the precise details of the interaction for the second time that day.

Principal's prior knowledge of vaccination status

1. FVR and FWA assert that the Principal was aware of their vaccination status as a result of communication between FVR and the Principal on 20 May 2022. FVR states that he texted the Principal advising that he and FWA were available for work and inquiring whether there might be a need for them at the school. This occurred following a period of exclusion as they were not vaccinated against COVID-19. In response to the text the Principal asked whether they had proof of vaccination. The Principal advised by text that she would talk to the Head Teacher and get back to them. She also asked that she be emailed the vaccination certificates and certificates for mandatory training required by the respondent for employment.
2. In response to an email from FVR enclosing the certificates, the Principal voiced doubt as to whether a medical exemption for the vaccine met the respondent's requirement for double vaccination but stated she would double check. The Principal states that, after satisfying herself that the medical exemption was sufficient, she advised the person who was then the Head Teacher Admin that FVR and FWA were available and that she had sighted their medical exemptions. She states that the Head Teacher Admin was responsible for engaging casual teachers and that, as Principal, she was generally not involved in the employment of casual staff.
3. The applicants state that the Principal never got back to them in response to their inquiry. They attribute the lack of communication to the Principal's adverse view of their vaccination status.
4. The Principal states that it was not until FVR contacted her in December 20 22 inquiring about work at the school for himself and FWA in 2023 that she became aware that the Head Teacher Admin had not contacted them in May 2022 about their earlier inquiry. At the hearing the Principal said she would have expected there to be some communication from the Head Teacher Admin. She states that she does not know why that did not occur, but believes it is likely that there was no need for causal teachers at the school at the time. She states that, compared to other schools in the region, the school has less need for casual teachers.
5. In relation to FVR's inquiry in December 2022 the Principal states that she advised him that there were no roles like the ones he had mentioned in his email vacant for 2023 and wished them well. I note that this correspondence is very cordial on both sides.
6. I accept that the Principal was aware of the applicants' vaccination status from May 2022 following the communications with FVR and their exemption certificates. The Principal's evidence that it was the Head Teacher Admin who was responsible for hiring teachers other than permanent employees is not controverted by any other evidence. I accept that the Principal advised the Head Teacher Admin that FVR and FWA were available for employment and that in doing so advised that they had a medical exemption from vaccination requirements. Other than the applicants' speculation, there is nothing to suggest that the Principal in any way prevented either FVR or FWA from being employed at this time, particularly as her evidence is it was not her role to employ non-permanent teachers. There is certainly no evidence that she opposed their employment because of their vaccination status.

Refusal to sponsor FWA's return to work

1. The applicants also state that, following being in receipt of their medical exemptions confirming their unvaccinated status, the Principal refused to act as FWA's sponsor in her return to work interview. FVR states that it was a requirement that returning teachers under the respondent's COVID health mitigation policy be "sponsored" by a Principal and that an interview be conducted with that Principal. The applicants are of the opinion that the Principal's refusal to act as sponsor was because of her view of their vaccine status. It is not clear when this incident occurred.
2. In relation to this claim, the Principal states that she remembers receiving a phone call from someone in the respondent Department who said that they had been contacted by FWA who wished to return to work on the basis of a medical exemption. The person stated that the respondent required a Principal who knew FWA well to participate in the process. The Principal states that she declined to participate in the process as FWA had not worked at the school for some time and she was generally very busy. She states there was nothing personal in her refusal but she may have been more inclined to participate if FWA had contacted her prior to the phone call from the respondent and explained what was required. She states that the vaccination status of FWA had nothing to do with her decision. The applicants' speculation as to the reason why the Principal declined to participate in the interview is simply that - speculation.
3. While the appellants seek to use this incident and the fact that they were not employed at the Principal's high school following the May 2022 approach by FVR as evidence of the Principal's view on their vaccine status, there is nothing in the evidence of the Principal to indicate that she bore any animosity towards the appellants on this basis. In my view the applicants have sought to colour these incidents with a particular flavour in order to support their claim that the Principal opposed their vaccination status. There is certainly nothing in the communication between FVR and the Principal later that year in December 2022 when FVR inquired about employment in 2023 which would indicate she bore them any ill will or that FVR believed he and FWA would not be employed at the school because of their vaccine status.

October 2022 job interview

1. The Principal denies that at the job interview in October 2022 with the job applicant COVID-19 was mentioned or that any person present referred to the applicants. She states she never described FVR and FWA as "anti-vaxxers", did not say they would never work at the school and did not ask the job applicant whether FVR was a friend. The Principal states that her relationship with FVR and FWA was amicable.
2. The Principal states that a number of interviews were conducted on the same day and the interview with the job applicant was about 20 minutes long. She said that she does not recall the exact questions asked, but they would have been standard questions about work history and skills and strengths an applicant brought to the position. She has provided a copy of her notes of the interview with the job applicant. The notes do not refer to vaccine status of the job applicant or the applicants. The Principal states that, as the job applicant was already working at a school in the region, there was no reason, nor was it her practice, to discuss his vaccine status at the interview. She also denies having any other conversation with the job applicant about COVID or vaccines when she escorted him out after the interview.
3. The Principal states that in February 2023 the job applicant came to see her and appeared agitated. He told her that he thought he had stuffed up and that he'd been contacted by PES regarding an allegation that during the October 2022 interview she had referred to FVR and FWA as anti-vaxxers who would never work at the school again. He said he had said something to FVR in the playground along the lines of: "You don't seem to be getting a lot of work. What have you done to piss [the Principal] off? Maybe you might get more work if you were vaccinated." The Principal states that the job applicant did not mention a conversation during a car trip. She also states that the job applicant agreed she did not say what he had described and could offer no explanation for why he had told FVR that she did. The Principal also states that she said to the job applicant that he should not be talking to her if he had been contacted by PES. She did not make a note of the conversation.
4. The Principal states that she was never contacted by PES about the complaint and was not informed of its outcome until she was interviewed in the context of the first Tribunal application.
5. In general, the Principal states she was dumbfounded by the conversation with the job applicant in February 2023 and cannot explain his motivation for saying to FVR that she had described the applicants as anti-vaxxers who would not work at the school again. She states that at the relevant time she followed the mandates in place regarding vaccination requirements for staff. She said at a personal level she does not care whether people are vaccinated or choose not to be.
6. The Principal was interviewed on 2 June 2023 during the investigation concerning the first Tribunal application and stated that at the interview with the job applicant the applicants were not discussed. She also recalled the conversation with the job applicant when he came to see her after being contacted by PES. Her recollection was in similar terms to that set out in her affidavit in these proceedings. Handwritten notes of the interview made by the interviewer contain the following: I've been contacted by PES It's common knowledge that they're anti-vaxxers I made some statement in the playground - it was shooting the breeze - like pub talk. I said to him you don't seem to be getting a lot of work what have you done to piss off [the Principal]? Maybe if you got vaccinated you might.
7. The applicants attribute the statement "It's common knowledge they're anti-vaxxers" to the Principal. When asked about the statement at the hearing, the Principal said that the job applicant had told her that was what PES had said to him.
8. The Head Teacher who was present at the October 2022 interview has also provided an affidavit. He states that the interview consisted of about six questions regarding the interviewee's work history and suitability for the role. All candidates were asked the same questions. He does not recall any discussion of COVID-19 and states it was not something that was usual to discuss in an interview at that time. He also states that there was no mention of either FVR or FWA during the interview and he has no recollection of the job applicant mentioning them in the context of discussing his work history. He states that no one discussed the vaccination status of FVR or FWA and neither he nor the Principal asked the job applicant if FVR was a friend of his.
9. The Head Teacher also states that he was contacted by PES and by the officer who carried out an investigation in relation to the first Tribunal application. On both occasions he stated there was no discussion of the applicant's vaccination status at the job interview.
10. On 1 May 2023 FVR sent a text to the job applicant asking him what he had told the respondent. The job applicant replied that he was "under instruction not to speak about this". The Principal states that she did not tell the job applicant not to talk to FVR or FWA and is not aware of any other departmental employee who did.
11. The job applicant has not provided an affidavit in these proceedings, although he gave evidence at the hearing. He was interviewed as part of the investigation concerning the first Tribunal application and stated that no-one told him not to speak about the incident. He said the message he had sent FVR was "a conversation-stopper".
12. During the investigation concerning the first Tribunal application the job applicant said that during the October 2022 interview the Principal did not say anything about the vaccination status of the applicants, although he said there was some talk of vaccinations at the interview. When asked about his conversation with the Principal in February 2023, he said that he and FVR were talking about vaccinations and he said something to FVR along the lines that if he was vaccinated he could get work at the school. He said it snowballed from that. The job applicant said he was aware of FVR's vaccination status as it was common knowledge between himself and FVR as FVR was an outspoken critic of COVID vaccinations.
13. At the hearing the job applicant said that he could not recall exact conversations from 2022 and 2023, although said his best recollection is what he wrote in an email in June 2023 in relation to the first Tribunal application. In relation to his approach to the Principal in February 2023, the job applicant said that he went to her because he does not like conflict. He reiterated that the vaccination status of the applicants was common knowledge but said that he did not usually use the term "anti-vaxxers". He said he had had many conversations with FVR that he might get more work if he was vaccinated. He denied that he was in any way "covering up" for the Principal and said he had not talked with anyone about what had happened and had not been pressured to exculpate the Principal.
14. The record of conversations between the job applicant and the PES investigator indicate that he was first contacted by PES on 15 March 2023. When asked by the investigator whether he recalled the Principal making a comment about two staff members to the effect of "I will not employ them because they are not vaccinated", the job applicant said he recalled a conversation about vaccinations but had no other recollection. He said he thought the conversation took place about six months ago. At the hearing the job applicant acknowledged that his first contact from PES would have been the phone call on 15 March 2023.
15. The Principal was asked in her evidence about her assertion that the job applicant approached her on 23 February 2023 after he had been contacted by PES when he was in fact contacted by PES for the first time on 15 March 2023. She said that she could not recall the exact date of the conversation but was certain that it was after the job applicant had spoken with PES.
16. During a conversation with the investigator the job applicant also said he wasn't "used to this sort of thing - lawyers and the like. I'm just interested in maintaining employment and my integrity at the same time." When asked at the hearing what he meant by "maintaining my employment and integrity", the job applicant said he thought he was referring to balancing having a job and a personal conflict or difference which could have an impact on that job.
17. The difficulty the applicants have is that neither was present when the alleged statements by the Principal were made. I do not doubt the sincerity of the applicants in their belief the statements were made. However, a further and more significant difficulty is that no-one who was present at the interview states that the Principal referred to the applicants at all, nevertheless that she referred to them as anti-vaxxers or stated that would not work at the school again. Equally important, the evidence of the job applicant is that he has never been pressured to say that the topic of the applicants or their vaccine status was not discussed at the job interview.
18. The applicants in their submissions have suggested collusion between the witnesses and have attributed various motives to their actions and statements. These submissions again engage in speculation and are based on the applicants' belief of wrongdoing rather than any evidence. That being said, I do not find the job applicant to be a credible witness. His lack of recollection of fairly significant events beggars belief and his evidence at the hearing was equivocal and somewhat evasive. Overall, he tended to want to agree with whoever was asking him questions and paint himself as someone who just wanted to avoid conflict. Indeed, he has not provided any consistent statement of what he in fact said to FVR, why he said it or where he said it. His evidence cannot be relied upon fully. However, in his dealings with PES, with the investigation in relation to the first Tribunal application and at the hearing he has never stated that the Principal described the appellants as anti-vaxxers or said they would never work at the school. He has also never said that he made those exact statements to FVR in a conversation with him.
19. The evidence of the Head Teacher was straightforward and he was not shaken in his evidence. Similarly, the Principal has consistently maintained that she did not make the statements as alleged. It is clear that the Principal's recollection of the date on which the job applicant came to see her and said he had been contacted by PES is incorrect. I do not consider that to be a significant matter nor does it reflect badly on the credibility of the Principal. Importantly, the accounts given of the meeting by the Principal and the job applicant are generally consistent.
20. In relation to the handwritten notes of the interviewer in June 2023 in the context of the first Tribunal application, it is clear that the statement "It's common knowledge that they're anti-vaxxers", when viewed in context, refers to what the job applicant was told by PES as it immediately follows the statement "I've been contacted by PES". Given that the Principal was never contacted by PES, she would not have made that statement.
21. I am not satisfied that the job applicant was told by the Principal or anybody else not to talk about the PES investigation. That he told FVR he was told not to talk about it is, in my view, consistent with his approach and statements at all stages of the process which seek to avoid any scrutiny of his own actions.
22. Overall, I cannot be satisfied on the basis of the evidence presented that the applicants were discussed or named at the job interview in October 2022 or the statements attributed to the Principal were in fact made. In those circumstances I cannot accept the applicants' claim that the conduct complained of in fact occurred: see KP v Narrandera Shire Council ; BYW v Commissioner of Police, NSW Police Force.
23. Having concluded that I cannot accept the conduct complained of in fact occurred, the appropriate order is to affirm the decision under review under s 63(3)(a) of the ADR Act and to decide to take no action under s 55(2) of he PIPP Act. The balance of the applicants' application for review insofar as it raises matters not properly the subject of the application for internal review must be dismissed.
24. Insofar as the applicants make a request for referral of the respondent's conduct to the Privacy Commissioner, while I am of the view that the applicants' concerns about the privacy were not dealt with in accordance with best practice, I am not satisfied that the conduct of the agency warrants any such referral.

Orders 1. The decision under review is affirmed in accordance with s 63(3)(a) of the Administrative Decisions Review Act 1997 and the Tribunal decides to take no action under s 55(2) of the Privacy and Personal Information Protection Act 1998. 2. The application is otherwise dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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 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: 17 February 2025