MJ v Department of Education and Communities

Whether a privacy application had to be made within a reasonable time

A question then arises as to whether s 55 of the Privacy and Personal Information Protection Act 1998 implicitly required applications to the Tribunal to be made within a reasonable time.
A similar issue of construction arose when the Administrative Decisions Tribunal ("ADT") was the body responsible for reviewing the conduct of agencies under the Privacy and Personal Information Protection Act 1998. There was no express provision for the time limits for making a privacy application to the ADT in the ADT's governing legislation.
In AT v Commissioner of Police, New South Wales Police Force [2009] NSWADTAP 1 at [34], the ADT Appeal Panel construed s 55 of the Privacy and Personal Information Protection Act 1998 as being subject to a "reasonable time" limitation. At the time of that decision, s 55(1) provided: 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.
The Appeal Panel effectively read this provision as including the words "within a reasonable time" after the word "Tribunal".
The Appeal Panel considered that what constitutes a reasonable time would depend on the circumstances of the case but that "60 days should be regarded as the ordinary outer limit of a reasonable time" (at [36]-[37]). It found that, although the ADT at first instance had erred in failing to apply the reasonable time test, and in wrongly applying a time limit in the tribunal's governing legislation, the review applicant had not made her application in a reasonable time. It therefore dismissed the appeal.
The review applicant appealed to the Court of Appeal. The applicant did not challenge the Appeal Panel's finding that an application must be made within a reasonable time, or its comments about what constitutes a reasonable time. Rather, the applicant argued that the Appeal Panel should have remitted the matter to a single member for a further hearing and that she was denied procedural fairness because she did not have an opportunity to provide evidence or make submissions as to whether the delay in making her application was reasonable.
The Court of Appeal upheld the appeal on procedural fairness grounds (AT v Commissioner of Police, NSW [2010] NSWCA 131). It did not comment on the Appeal Panel's construction of s 55 as containing an implication that an application was required to be made within a "reasonable time".
Since the decision in AT, s 55(1) of the Privacy and Personal Information Protection Act 1998 has been amended. It now provides: 55 Administrative 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 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 amendment to the provision was made by the Civil and Administrative Legislation (Repeal and Amendment) Act 2013 (NSW), Sch 2, item 2.118 [6]. This amendment was one in a suite of legislative changes made to effect the abolition of a number of tribunals and their replacement by the Civil and Administrative Tribunal. On the same day that the Civil and Administrative Legislation (Repeal and Amendment) Act 2013 was assented to, being 20 November 2013, the Civil and Administrative Tribunal Amendment Act 2013 (NSW) also received assent. The Civil and Administrative Tribunal Amendment Act 2013 amended what was then known as the Administrative Decisions Tribunal Act 1997, renaming it the Administrative Decisions Review Act 1997 and making other amendments. These amendments included the insertion of a new s 55 into the Administrative Decisions Review Act 1997, subsection (2) of which is set out above.
The amendment to s 55(1) of the Privacy and Personal Information Protection Act 1998 is significant, because it now makes clear that the Tribunal's review is to occur "under the Administrative Decisions Review Act 1997". As will be clear from the discussion above, the Administrative Decisions Review Act 1997 is closely connected to the NCAT Act through a series of references in both Acts to the other Act. For example, s 28(2)(b) of the NCAT Act identifies one of the kinds of jurisdiction the Tribunal exercises as being its administrative review jurisdiction. Section 30(1) of the NCAT Act provides that the Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator. The Administrative Decisions Review Act 1997 then makes provision for those circumstances in s 9. Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 makes provision for applications to the Tribunal for administrative review and for their handling in the Tribunal. The two Acts, then, are intended to be read together.
The circumstance that the amended s 55(1) of the Privacy and Personal Information Protection Act 1998 refers to administrative review occurring "under the Administrative Decisions Review Act 1997" indicates that the legislature is integrating privacy reviews into the new system of regulation governing administrative reviews in NCAT. That system already makes provision for time limits to be imposed by procedural rules.
The NCAT Act provides that applications to the Tribunal are to be made "in the time and manner prescribed by enabling legislation or the procedural rules" (NCAT Act, s 40). Section 55(2) of the Administrative Decisions Review Act 1997 similarly provides that "[s]ubject to enabling legislation, an application [to the Tribunal] is to be made in the time and manner prescribed by the procedural rules."
There must be some doubt as to whether s 55(2) of the Administrative Decisions Review Act 1997 applies to privacy reviews, because other subsections of s 55 appear to be inconsistent with the privacy legislation. Section 55(1) of the Administrative Decisions Review Act 1997 applies an "interested person" standing test, whereas s 55(1) the Privacy and Personal Information Protection Act 1998, read with s 53(1) of that Act, applies a different standing test. Further, s 55(3) of the Administrative Decisions Review Act 1997 refers to the undertaking of an internal review under that Act (see definition of "internal review" in s 4(1)), whereas such internal reviews are not available to privacy applicants. Subsections 55(4) to (6) also refer to applications to the Tribunal made after internal reviews carried out under the Administrative Decisions Review Act 1997. However, even if s 55(2) of the Administrative Decisions Review Act 1997 does not apply to privacy reviews, s 40 of the NCAT Act does.
The Privacy and Personal Information Protection Act 1998 does not, on its face, make any provision for the making of applications to the Tribunal within a particular time frame. It does not "prescribe" the time and manner of making an application to the Tribunal, within the meaning of s 40 of the NCAT Act. The legislative scheme for administrative review, established under the NCAT Act and the Administrative Decisions Review Act 1997, contemplates that, where no specific provision for the time and manner of making an application to the Tribunal is made under the enabling legislation, this is to be dealt with in accordance with the procedural rules.
If it were otherwise, and s 55(1) of the Privacy and Personal Information Protection Act 1998, on its proper construction, required applications to the Tribunal to be made within a reasonable time, then any provision made for privacy applications to be made within a specified time under the Tribunal rules would be inconsistent with s 55(1) and invalid. This is because a time specified by those rules might be a "reasonable time" in some circumstances, but not in others. The amended rule 24 of the NCAT Rules, which now provides for time limits for the making of privacy review applications in r 24(4)(a1) would therefore be invalid. It cannot, in my view, have been intended by the legislature that the Rule Committee would not have the power to make rules determining time limits for applications to the Tribunal in privacy matters.
For these reasons, I find that s 55(1) of the Privacy and Personal Information Protection Act 1998 does not require applications to the Tribunal to be made within a reasonable time or within any specified time frame. While this interpretation may have some unfortunate consequences, those consequences are not, of themselves, sufficient to justify a construction of s 55(1) which is inconsistent with the legislative scheme.
That being the case, the circumstance that the applicant waited for more than six months before making her application to the Tribunal does not deprive the Tribunal of jurisdiction to review her application.
These reasons should not be taken to indicate that the Tribunal has made a decision about any other jurisdictional issues which might arise. The Tribunal notes that there is a dispute between the parties as to whether conduct, of which the respondent says the applicant was aware more than six months before she applied for internal review, is properly the subject of an application to this Tribunal. The Tribunal has not yet considered this question.
Matter to be listed for a planning meeting on Tuesday, 7 April 2015 at 11.30am for the making of further directions. 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: 24 February 2015

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