[2005] VCAT 1054

1 Complaint not proven and accordingly dismissed.

2 Costs reserved.

Mr Jason Pizer, Counsel, instructed by Maddocks Solicitors

1 Mrs Ng holds a degree of Bachelor of Arts from the University of Malaya for which she qualified in 1975. She also holds a Graduate Diploma in Secretarial Studies obtained in 1976 from the Caulfield Institute of Technology, a Diploma of Education obtained in 1979 from Monash University and a Bachelor of Business (Accounting) obtained from Monash in 1992. She lived intermittently in Australia in the 70s and 80s and has lived here continuously since 1987. She has been a teacher with the Victorian Department of Education and Training since 1987. In 1993 she commenced work as a teacher at the Box Hill Senior Secondary College and continued in that role until Term 1 of 2003. At Box Hill she taught Information Technology, Business Management and Study of Society and Environment in Years 10, 11 and 12.

2 During 1994 Mr Wayne Craig was appointed as Principal at Box Hill. He held that position throughout the time that Ms Ng taught at the school.

3 Mr Craig says that issues were raised with him as to the quality of Ms Ng's teaching from his early years as Principal. In 2000 and 2001 support groups were established to assist Ms Ng to better her performance as a teacher.

4 In the period June to September 2001 closed circuit television (CCTV) was established in a number of locations at the school premises, in particular in the computer rooms. The cameras were put in the computer rooms and not in the ordinary classrooms, it was said, because students were intended to have access to the computer rooms and use the system outside class time and without direct supervision of a teacher.

5 In October 2002 a number of complaints were made by students and parents about Ms Ng's teaching and classroom management. Having regard to the subjects which she taught, Ms Ng customarily took her classes in one of the computer rooms.

6 On 31 October 2002 another teacher at the school, Mr Jim Ringin intervened during one of Ms Ng's classes to prevent what he apprehended might be a serious fight between two students. As a result of the intervention Mr Craig as Principal, interviewed six of the students who were present in the class at which Mr Ringin intervened. According to Mr Craig:

The students told me how Gloria is often late to class, and the students would come and go during the class, but this particular class was even worse than usual. They told me how Gloria turned the lights on and off to get the students' attention and how she brought lollies to try to "bribe" the students to do their work. I was told that Gloria was distributing the lollies and then threw the bag down, when a student dived to retrieve the bag, and Gloria seeing this, tried to stop him and so the student fell and hit the filing cabinet instead. He then lay on the floor a while, and Gloria just ignored him. I believe that the students were being frank with me and not acting out of any malice.

7 Mr Craig says he was then told by his Assistant Principal, Ms Vlass that Ms Ng had:

Asked her whether students were covered by WorkCover. It appeared that this was as a result of the student who fell during Gloria's class on 31 October 2002, who said he was hurt and may sue her.

8 Mr Craig said he found these matters very disturbing. He had felt that Ms Ng's teaching had been problematic over a period of years but he said he had not suspected that things might be as bad as the account of the events of 31 October suggested. Ms Ng had filed an incident report as to the fight or threatened fight in which Mr Ringin had intervened but had said nothing of the incident in which the student fell and claimed to have injured himself. He said 'there was some discrepancies in the various versions I have been told' in his witness statement. Under cross-examination by Counsel for Ms Ng, Mr Harding, Mr Craig admitted that the accounts of events which he had received from the six students were coherent. He said that he was incredulous as to what he had been told. This is clearly a different emphasis from the one which his witness statement gave, concentrating as it does on alleged 'discrepancies' in the word of mouth accounts he had received. On the basis of what we have been told, Mr Craig said he believed this was now a safety issue and he asked an IT technician at the school to provide him with CCTV surveillance footage of Ms Ng's class on 31 October 2002. Mr Craig viewed the footage on 7 November 2002.

9 On the same day Mr Craig wrote Ms Ng an eight page letter giving detailed accounts of a range of complaints which had been made against Ms Ng by persons including students, teachers and other staff at the school. The incident on 31 October 2002 is mentioned on page 6 of the letter. At pages 6 and 7 there are allegations that Ms Ng allowed students in her class to play games and view inappropriate web sites including 'hotmail' and pornographic web sites. The students were able, according to Mr Craig, to evade the electronic countermeasures aimed at blocking these inappropriate sites. Another electronic countermeasure introduced according to the letter was a 'desktop icon' to report infringements. According to Mr Craig's letter, Mr Mills the IT Technician had told Mr Craig that Ms Ng had failed to report infringements detected by the use of the desktop icon. On the seventh page of the letter under the heading 'General classroom management' were a number of allegations including of students wrestling in class and the theft of a mobile phone during one of Ms Ng's classes. Mr Craig required Ms Ng to 'provide a written response to these complaints within three working days' adding that he would 'therefore be instituting a ten-day monitoring and support period commencing tomorrow, Friday, November 8'.

10 Ms Ng replied in another eight page letter dated 8 November 2002. In the course of responding to the allegations as to the events of 31 October and the allegations of inappropriate accessing of databases by students she said:

On one occasion, I asked the IT Technician and the IT Co-ordinator to permit me to view the CCTV on the activities of the class. It was impossible to get any assistance in the area. I do not have answers as to how this happened.

11 In her viva voce evidence Ms Ng said that the IT Co-ordinator who failed to respond to her request was Mr Hawkes, a now retired teacher. She also said in that evidence that Mr Hawkes informed her that the CCTV was not operative. In his letter of 7 November, when dealing with the incidents on 31 October, Mr Craig had observed:

This afternoon I viewed a CCTV video of the class and the accounts of the two students appear compatible with the video.

12 Ms Ng said that on 18 November 2002 she was teaching a Year 10 IT class and had occasion to leave the room briefly to go to the Technician's office. She said she saw Mr Craig at the monitor:

Watching my classroom live. He had been aware that I was taking that class. He seemed surprised when I went into the Technician's room. The day I caught Mr Craig, I had not yet become aware of the real significance of it.

13 Mr Craig denies having engaged in any 'live' video monitoring of any of Ms Ng's classes, whether on 18 November or otherwise. In one of his statements he said that regular classes for the year had ceased by 18 November. He was eventually required to concede under cross-examination that there were certain 'scratch' classes being conducted at that stage. Mr Harding cross-examining for Ms Ng offered to produce a report from Ms Catherine Manning, another teacher who had been appointed to supervise Ms Ng's classes.

14 On 26 November 2002 Ms Ng was summoned to a meeting with Mr Craig in his office. Also present were a representative of the Australian Education Union, Ms Kim Daly (attending at Ms Ng's request and as her advocate), and for at least part of the time, the Assistant Principal, Ms Vlass. Mr Craig played part of the video of Ms Ng's 31 October class. In her witness statement, Ms Ng said:

I had no idea that I was being video taped while I was teaching, and I had certainly never consented to the video-tape being made or shown to others as has been done. I was shocked when he showed us the video. I was embarrassed and made to feel like a criminal; this was not because of what actually occurred in the class, but because of the fact that my privacy had been violated, and because footage Mr Craig showed were unrepresentative in the context was clearly not understood. I was upset that the school made the video tape, and I complained to Mr Craig that I was never aware that I was being recorded. Mr Craig responded by saying that there is a warning sign on the door of the IT room. However, as far as I recall, the warning does not refer to video monitoring.

15 According to Mr Craig, the suggestion that the video footage be viewed during the meeting on 26 November came from Ms Daly of the Australian Education Union, who it will be recalled was acting as advocate for Ms Ng. Mr Craig says that Ms Daly made the suggestion, apparently as a means of resolving disputes as to what did or did not occur. He said Ms Ng agreed to it.

16 On 23 December 2002 Mr Craig wrote to the Department of Education and Training's Conduct and Ethics Branch requesting it to consider whether to institute an enquiry under Section 45 of the Teaching Service Act 1981. He said:

After many years of complaints and numerous attempts to assist Ms Ng to overcome severe deficiencies in her capacity to teach and manage classes, I have come to the view that Ms Ng represents a danger to the health and safety of students.

The letter was of six pages plus attachments. The CCTV video footage of the class on 31 October was mentioned as an attachment, though apparently not in fact attached. It was said to be 'available if required'. In addition to those present at the 26 November meeting, Ms Ng complained that the video footage has also been shown to Messrs DeMelis and Damien Dwyer, both teachers at the school and Mr Jeremy Nugent, a former student at the school. Mr Craig admits showing the video to Messrs DeMelis and Dwyer. They had been amongst those providing information to him about the alleged deficiencies in Ms Ng's teaching. Under cross-examination Mr Craig said that he asked these gentlemen to view the footage of 31 October to ascertain whether he should regard this as a 'one off disaster class' or as typical of the standard of Ms Ng's teaching. He said that Messrs DeMelis and Dwyer informed him that what was depicted on the video was typical according to their observations. In a supplementary witness statement, Mr Craig said he had 'no recollection of student Jeremy Nugent being shown the footage'.

17 Following his letter of 23 December 2002 Mr Craig had discussions with a Ms Augustinus who is an Investigations Officer in the Conduct and Ethics Branch of the Department. On the basis of these discussions and Mr Craig's letter of 23 December 2003, Ms Augustinus said:

I had reason to suspect that [Ms Ng] may have breached the [Teaching Service] Act [1981] and Teaching Service Order 165 made under the Act.

18 Ms Augustinus said that she considered two options, the bringing of a prosecution against Ms Ng under Part 5 of the Teaching Service Act or the conduct of an enquiry under Section 45 of that Act into Ms Ng's fitness to be a teacher. In Term 1 of 2003 Ms Augustinus conducted some 30 interviews at the school and herself viewed the CCTV footage of the class of 31 October 2002. She said she did this because the video 'was the best evidence available of what took place on that day'. Following these interviews she recommended 'that an enquiry under Section 45 would be the most appropriate course to take in this case'. Until the completion of the interview process she said that she had not excluded the possibility of a prosecution under Part 5 of the Act.

19 The Director of the Office of School Education signed an instrument dated 28 May 2003 pursuant to Section 45 of the Teaching Service Act and as delegate of the Secretary of the Department of Education and Training, convened an enquiry under Section 45(1) of the Act. The notice extended to some seven pages including a range of specific allegations including allegations of events during the Year 10 IT class on 31 October 2002. The Secretary's delegate, Kim Bannikoff, did not, it was said, view the video. A delegate of the Secretary, Mr Malcolm Millar was appointed to conduct the enquiry. According to Ms Augustinus in her statement dated 4 May this year:

For a variety of reasons, the Section 45 enquiry has not proceeded to a point where the delegate, Mr Malcolm Millar, has considered any of the evidence. In particular, Mr Millar has not yet viewed the CCTV footage.

20 Meanwhile, Ms Ng was removed from classroom teaching with effect from Term 1 of 2003.

21 Ms Ng complained that particularly in late 2003 she was under heavy pressure from Mr Craig to resign from the teaching service. She said that on one occasion Mr Craig told her that he would be 'relentless' in action to remove her. This statement according to Ms Ng occurred as early as 2001. Ms Ng said that on 22 October 2002, BC, a Year 11 Business Management student told her that she 'would be leaving the school next year, so why should he worry about me'. She complained to Mr Craig about this. On 6 October 2002 JG a Year 10 student, told her 'you're in trouble' and on 8 November 2002 MC a Year 11 student said 'you are in a lot of trouble and they are going to give you back shit'. He said that these incidents caused her a great deal of stress. Mr Craig denies having told any student that Ms Ng was going to be removed from the school. He agrees however, that he did interview a number of students including those named, impressing upon them that he was carrying out a confidential investigation relative to Ms Ng's performance as a teacher.

22 The CCTV system at the school which is at the heart of the present dispute was installed in the computer rooms and there are two cameras outside the toilets. The computer rooms have a sign on the door in block capitals:

THIS PROPERTY IS UNDER CONSTANT ELECTRONIC SURVEILLANCE!

23 The system is digital rather than tape based and the images are recorded to a hard drive 24 hours a day, the data is kept for two weeks and then destroyed. On 8 October 2001 Mr Craig issued a memorandum to all staff:

As discussed earlier this year CCTV (closed circuit television) has now been installed in all computer rooms to minimise vandalism and to monitor student use of computers and, in particular, the internet.

24 In November 2001 Mr Craig forwarded a document styled 'Request for approval for the installation and use of CCTV' to the Emergency and Security Management Branch of the Department. Under the heading 'Reason for CCTV use' and a heading 'Problem' Mr Craig inserted the words 'excessive graffiti and vandalism in and near student toilets, theft and vandalism in computer rooms'. In answer of the question 'What measure (sic) have been tried or put in place to prevent the occurring?' the following appears: 'staff requested to be more vigilant when on yard duty. No access to computer rooms unless a staff member present'.

25 A report was prepared by Scanecho Pty Ltd at the request of Mr North of the Emergency and Security Management Branch of the Department. The report was styled 'An investigation and report on closed circuit television (CCTV) installation at Box Hill Senior Secondary College'. The report described the system generally and 'observed the principle [sic] as proficient in the use of the system and is the only member of staff to view incidents'. The Scanecho report raised certain issues relative to the installation in the system and the Business Manager of the School, Ms Lynne Clarke responded in a letter dated 5 June 2003. On 11 September 2003 Ms Michelle Roberts, Manager, Emergency and Security Management at the Department wrote to Mr Craig stating, inter alia:

From the information provided by Scanecho Pty Ltd, it appears installation of the CCTV system meets with Department requirements. Please ensure that use continues to comply with the requirements outlined in Executive Memorandum 98/020 and approval for any subsequent alterations or additions to the CCTV system is sought from this office prior to any changes being made.

26 By memo dated 25 August 2004 Ms Ng lodged a complaint with the Privacy Commissioner under the Information Privacy Act 2000. The Commissioner's office summarised Ms Ng's complaint in a document dated 16 September 2004 as follows:

She said that the Department [of Education and Training] through the management at the Box Hill Senior Secondary College had:

•

Breached Information Privacy Principle 1.1 in that it collected surveillance information by a means which was unlawful, unfair and/or unreasonably intrusive;

•

Breached Information Privacy Principle 2.1 in that it used the surveillance information for a purpose unrelated to the primary purpose of this surveillance equipment was (arguably) to be collected (that is, as a security measure);

•

Breached Information Privacy Principle 4.1 in that it failed to take reasonable steps to protect information concerning her dealings with the Principal on performance issues from unauthorised disclosure to students.

27 By letter dated 16 November 2004 to the Department, the Victorian Privacy Commissioner stated that 'pursuant to Section 29(1) of the Information Privacy Act 2000 ... I have decided not to entertain this complaint'. By a letter dated 10 December 2004 to a Senior Registrar of this Tribunal, the Commissioner stated that he had

Received written notice from Ms Ng that she wants to have her complaint referred to [the Tribunal] pursuant to Section 29(5) of the Information privacy Act 2000.

28 On 8 February 2005 the Herald Sun, the largest circulation daily newspaper in Victoria ran a story on these events headed 'SPY-CAM IN CLASSROOM'. A further heading stated 'exclusive: how a Melbourne Principal filmed one of his teachers'. The picture includes a 'still' from the video and a posed photograph of Ms Ng. It quotes her as saying 'I was quite shocked and surprised and upset. I felt my every move was being watched and I was on my own'. The article included a further quote from Ms Ng to the following effect:

I felt like a criminal. It was used to put my job on the line after I have been there for nine years.

29 According to the article, Education Department guidelines prohibit closed circuit television systems being used to monitor individual work performance. In the article Mr Craig described the use of the video in this case as 'unusual but appropriate'. According to the article Mr Craig said that staff and students were aware they were being recorded and 'no decisions were made on a basis of that video footage ... it was just an example of the quality of her teaching'.

30 In one of the concluding paragraphs of her witness statement in the Tribunal, Ms Ng said:

My professional standing and reputation has been destroyed, and I feel very embarrassed in front of my family, colleagues and friends, through no fault of my own. Face-saving is culturally very important to me. Mr Craig has humiliated me and damaged my confidence as a teacher and as a person throughout this process.

31 A compulsory conference ordered by the Tribunal failed to resolve this matter and it came on for hearing before me on 9 and 10 May 2005. A further hearing was held on 17 May to hear closing submissions. The hearing commenced shortly after 10.00 am and lasted till 4.30. Both Mr Harding on behalf of Ms Ng and Mr Pizer, Counsel for the Department, provided lengthy viva voce submissions and at the conclusion of the day filed written summaries of their arguments.

32 The Information Privacy Act 2000 has as its main purpose the following:

(a) to establish a regime for the responsible collection and handling of personal information in the Victorian public sector;

(b) to provide individuals with rights of access to information about them held by organisations, including information held by contracted service providers;

(c) to provide individuals with the right to require an organisation to correct information about them held by the organisation, including information held by contracted service providers;

(d) to provide remedies for interferences with the information privacy of an individual;

(e) to provide for the appointment of a Privacy Commissioner.

33 By virtue of Section 9 of the Information Privacy Act 2000 and the definition of 'public sector agency' in Section 3 of the Act, the Act applies to the respondent Department. Section 25(1) of the Act entitles an individual in respect of whom personal information is held to complain to the Privacy Commissioner 'about an act or practice that may be an interference with the privacy of the individual'. Section 29 of the Act sets out a number of circumstances in which the Privacy Commissioner may decline to entertain a complaint which is what happened in the present instance. The section provides that a complainant may within 60 days of receiving the Commissioner's notice declining to entertain a complaint, require the Commissioner to refer the complaint to this Tribunal under Division 5 of Part 5. Section 41 of the Act sets out the orders which the Tribunal may make upon the hearing of a complaint.

34 Section 14(3) of the Act provides that for the purposes of the statute:

An Act done or practice engaged in by an organisation [and that specifically includes the respondent Department] is an interference with the privacy of an individual if, and only if, the act or practice is contrary to, or inconsistent with an Information Privacy Principle or an applicable code of practice.

35 Division 2 of Part 2 of the Act includes a series of exemptions. The two relevant to the present dispute are Sections 10 and 13 which are as follows:

10 Nothing in this Act or in any IPP applies in respect of the collection, holding, management, use, disclosure or transfer of personal information -

(a) in relation to its or his or her judicial or quasi-judicial functions, by -

(ii) the holder of a judicial or quasi-judicial office or other office pertaining to a court or tribunal in his or her capacity as the holder of that office; or

(b) in relation to those matters which relate to the judicial or quasi-judicial functions of the court or tribunal, by -

(i) a registry or other office of a court or tribunal; or

(ii) the staff of such a registry or other office in their capacity as members of that staff.

13 It is not necessary for a law enforcement agency to comply with IPP 1.3 to 1.5, 2.1, 6.1 to 6.8, 7.1 to 7.4, 9.1 or 10.1 if it believes on reasonable grounds that the non-compliance is necessary -

(a) for the purposes of one or more of its, or any other law enforcement agency's, law enforcement functions or activities; or

(b) for the enforcement of laws relating to the confiscation of the proceeds of crime; or

(c) in connection with the conduct of proceedings commenced, or about to be commenced, in any court or tribunal; or

(d) in the case of the police force of Victoria, for the purposes of its community policing functions.

36 It is also necessary to consider the definition of 'law enforcement agency' which appears in Section 3 of the Act and which in part reads:

(g) an agency responsible for the performance of functions or activities directed to -

(i) the prevention, detection, investigation, prosecution or punishment of criminal offences or breaches of a law imposing a penalty or sanction for a breach; or ...

37 In the present circumstances there is no applicable code of practice. The validity or otherwise of Ms Ng's complaint must be judged by reference to the Information Privacy Principles.

38 The Information Privacy Principles are set out in Schedule 1 of the statute. They are constituted by some 10 principles arranged in 10 clauses some of which are divided into sub-clauses. A key concept for the application of the principles is the concept of personal information which is defined in Section 3 as follows:

"personal information" means information or an opinion (including information or an opinion forming part of a database), that is recorded in any form and whether true or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion, but does not include information of a kind to which the Health Records Act 2001 applies;

39 It will be seen that the concept of personal information goes far beyond what in popular discourse would be regarded as privacy issues. It is common ground for instance that the digital recording of the events in the computer room on 31 October 2002 at Box Hill Senior Secondary School is personal information. By parity of reasoning an image recorded by a surveillance camera in King Street in the central city which identifiably depicted a Tribunal Member would constitute personal information. This, despite the fact that one would have thought King Street is manifestly part of the public realm rather than the private realm. The distinction between observation and recording of what happens in public rather than in private areas is an important one in legal systems right around the world. Hence, the so called paparazzi are at liberty to photograph celebrities or others against their will in any public place whether the celebrity desires the photograph to be taken or not and without liability under any privacy protection law.

40 The lengthy argument in the present proceeding suggests that the following clauses and sub-clauses are the relevant ones from the Information Privacy Principles for the purposes of the present proceeding:

1.1 An organisation must not collect personal information unless the information is necessary for one or more of its functions or activities.

1.2 An organisation must collect personal information only by lawful and fair means and not in an unreasonably intrusive way.

2.1 An organisation must not use or disclose personal information about an individual for a purpose (the secondary purpose) other than the primary purpose of collection unless -

(i) the secondary purpose is related to the primary purpose of collection and, if the personal information is sensitive information, directly related to the primary purpose of collection;

(ii) the individual would reasonably expect the organisation to use or disclose the information for the secondary purpose; or

(b) the individual has consented to the use or disclosure; or

(e) the organisation has reason to suspect that unlawful activity has been, is being or may be engaged in, and uses or discloses the personal information as a necessary part of its investigation of the matter or in reporting its concerns to relevant persons or authorities; or

(f) the use or disclosure is required or authorised by or under law; or

(g) the organisation reasonably believes that the use or disclosure is reasonably necessary for one or more of the following by or on behalf of a law enforcement agency -

(i) the prevention, detection, investigation, prosecution or punishment of criminal offences or breaches of a law imposing a penalty or sanction;

(ii) the enforcement of laws relating to the confiscation of the proceeds of crime;

(iv) the prevention, detection, investigation or remedying of seriously improper conduct;

(v) the preparation for, or conduct of, proceedings before any court or tribunal, or implementation of the orders of a court or tribunal; or

4.1 An organisation must take reasonable steps to protect the personal information it holds from misuse and loss and from unauthorised access, modification or disclosure.

4.2 An organisation must take reasonable steps to destroy or permanently de-identify personal information if it is no longer needed for any purpose.

41 Before turning in detail to a consideration of this dispute the Information Privacy Principles which are the basis of the complaint and the terms of the Information Privacy Act 2000 it is convenient to deal with a few preliminary factual issues.

42 Insofar as Ms Ng says that she became aware for the first time at the meeting on 26 November 2002 that her classes were being taped, her evidence must be rejected. In her letter of 8 November 2002 to Mr Craig she refers to an attempt on her part prior to 26 November to view CCTV footage of her classes. She states she got no co-operation from the IT Technician or IT Co-ordinator. Her viva voce evidence disclosed that the latter was a Mr Hawkes. In her viva voce evidence she said that Mr Hawkes told her that the CCTV system was not operative. In the context of her complaint this was a matter of the first importance. The fact it was not included in Ms Ng's witness statement and that her letter of 8 November implicitly asserts the contrary viz. that the unnamed technician and co-ordinator could have facilitated Ms Ng but simply refused, makes it difficult to accept the viva voce evidence that Mr Hawkes told Ms Ng that the system was not operative.

43 Further, the fact that Mr Craig in his letter of 7 November stated that he had viewed the CCTV footage also renders Ms Ng's statement that she was unaware that she was being videoed impossible to accept. Her response to the letter of 7 November is detailed and 'point by point'. It is obvious that she read Mr Craig's letter with great care.

44 Finally, insofar as reliance has been placed by Ms Ng upon the CCTV guidelines referred to in the application for approval of installation described above and on any memoranda or briefings given at the time of installation of the system (Mr Craig says he gave a staff briefing as well as simply issuing a memorandum) Ms Ng cannot be regarded as having in any way 'relied' upon any of these things. According to her own statement she did not first gain access to the Department's CCTV guidelines until 2004. She said she had no memory of the memo or any briefing.

45 The inevitable rejection of the bold but unsustainable assertion that Ms Ng became aware that her classes were being video recorded for the first time at the meeting on 26 November 2002 necessitates the treatment of the entirety of her evidence with some care. Mr Craig's evidence was not entirely consistent throughout, for instance, I have noted that he said he viewed the CCTV because of 'discrepancies' in the accounts given to him of the events on 31 October. In the witness box he gave a different account viz. that the narratives given by witnesses were coherent and relatively consistent but that he viewed the tape because he was incredulous. On balance however, Mr Craig's evidence did not exhibit the significant flaws that I have identified in Ms Ng's evidence and so where it is a question of conflicts between their accounts of events, I would prefer Mr Craig's account of events to Ms Ng's. I am fortified in that view by the consideration that Ms Daly who upon Mr Craig's account, played a key role in the meeting of 26 November, actually suggesting that the CCTV footage be viewed, was not called as a witness for Ms Ng. Ms Daly was attending as Ms Ng's representative. I am entitled therefore to infer that Ms Daly's evidence would not have assisted Ms Ng's case. Jones v Dunkel (1959) 101 CLR 298.

GUIDELINES FOR THE USE OF CLOSED CIRCUIT TELEVISION SYSTEMS IN STATE GOVERNMENT SCHOOLS

46 Mr Harding, placed extensive reliance on the document known as 'Guidelines for the use of closed circuit television systems in State Government schools' which is described as being prepared by an agency in security management, 3 August 1998. The document is also known as Executive Memorandum 98/020. Even although described as 'guidelines', the terms of the document are cast in descriptive and mandatory terms. Clause 1.3 states:

Both school administrators and school councils are required to place extreme care when considering the implementation of a closed circuit television system so that the system does not infringe on the privacy of individuals.

47 Clause 2 prohibits the use of closed circuit television systems in a number of areas, namely:

•

Toilets;

•

Change rooms;

•

Dressing rooms;

•

Showers;

•

Staffrooms;

•

Other areas where individual privacy is paramount.

48 Clause 2.2 is important to the present dispute. It states:

Closed circuit television systems must not be used for the following purposes:

Monitoring non-school areas or public places from school sites.

49 Clause 3, headed 'Requirements prior to use' requires school administrators to use closed circuit television only where there is a specific or heightened security risk and there is a documented history of potential for loss or risk. This would generally be indicated by documented reports to the Emergency and Security Management Department. Clause 3.6 requires that 'appropriate signage' be placed to inform staff, students and others that surveillance is taking place'. Clause 4 deals with information handling. Clause 4.1 provides that access to surveillance information should be restricted:

to individuals whose use of it will be limited to the original purpose of the surveillance. This would normally be nominated senior employees.

Under no circumstances is surveillance information to be provided to third parties, including school staff and contractors without the express approval of the Manager, Emergency and Security Management.

51 Mr North who is the Co-ordinator Quality and Standards of the Emergency and Security Management Unit of the Department of Education and Training gave evidence that despite the Guidelines being couched in mandatory terms they were in fact a bluff. He said that since under the existing arrangement each school was self-governing it could in strictness go the same way without regard to the guidelines. In fact, this is the way that the Box Hill Senior Secondary College did things. It produced the Emergency and Security Management Unit of the Department with a fait accompli, it made its application only after the system was installed. Mr North produced the Department's Information Privacy Policy which it had adopted for the purposes of the Information Privacy Act 2000 and the Health Records Act 2001. The policy makes specific reference to the Information Privacy Principles but states at paragraph (1) that personal and health information was collected and used by the Department for the following purposes:

•

To investigate incidents in schools and/or defend any legal claims made against the DE&T (Department of Education and Training], with schools or its employees.

52 Mr Harding said that Section 16(1) of the Information Privacy Act prohibited an organisation from doing or engaging in a practice that contravened an Information Privacy Principle. He said that the Box Hill Senior Secondary College and the Department were organisations for the purposes of the Act. [I will not stay to consider whether the school is an organisation for the purposes of the Act. If it is, the respondent in this proceeding is the Department. The school, if it exists, as a separate entity is not a party at all, so I need say no more about any claim against the school.]

53 As to the Guidelines, Mr Harding said that despite their description as 'guidelines' they were in fact rules. He referred to the very prescriptive elements in the Guidelines which I have already described. He noted that Mr Craig, the Principal and Mr Hibbins who is the manager of the Conduct and Ethics Branch of the Department both gave evidence that they regarded these guidelines as binding rules. According to Mr Harding the purpose for which the CCTV was installed was the detection of vandalism and graffiti. So much appeared from the application and the report by Scanecho Pty Ltd prepared after the event the subject of this complaint. According to Mr Harding, Mr Craig's memorandum to staff dated 8 October 2001 'confirms the purpose of the installation of the CCTV system'. He said it was significant that the surveillance equipment was installed in computer rooms but not in all classrooms.

54 Next, Mr Harding contended that in violation of Clause 2.2 of the Guidelines, the surveillance equipment had in this case been used to monitor Ms Ng's work performance. He referred to the Macquarie Dictionary Revised Edition which gives the following meanings for monitor as a verb (inter alia):

To check, observe, or record, the operation of (a machine etc), without interfering with the operation.

55 According to these meanings said Mr Harding, there is no distinction to be drawn between live viewing of surveillance footage and the viewing of a playback. He said therefore, Mr Craig violated the Guidelines when he viewed the footage on 7 November and did so again when he showed the footage to Messrs Dwyer and DeMelis 'inviting them to comment on Ms Ng as a teacher by reference to the CCTV footage'.

56 Mr Harding said it was common ground between the parties that the recording made of Ms Ng's class on 31 October 2002 was personal information 'in this case ... a visual recording of Ms Ng performing as a teacher in the classroom'.

57 Turning then to the Information Privacy Principles he said that Principle 1.1 laid down a strict test of necessity 'referrable to the organisation's functions and activities'. He said that this principle was 'not concerned with why information that has been collected has been used, but rather requires the collection of personal information to be justified before it is used'. According to Mr Harding the respondent has as one of its functions the management of teacher work performance. Nevertheless it was not necessary to collect a visual recording of teacher performance when this was prohibited by the Guidelines when there are other means of investigating performance concerns including the placement of another teacher in the classroom to investigate, interviewing other teachers and students and so forth. Further, he said that Mr Craig said the CCTV was installed in the computer rooms to enable them to remain open even when the teacher was not present. Mr North conceded, he said, that the CCTV could be turned off when a teacher entered. Finally, he said it was not necessary to collect the visual recording of the teacher's work performance in the classroom 'just in case a matter of student safety arises'.

58 As to Principle 1.2 Mr Harding said the information was collected by unfair means and means that were unreasonably intrusive. He said the collection of the personal information:

was entirely incidental to the main purpose for which the CCTV was installed. Mr Craig seized on the opportunity it created when the events on 31 October 2002 were reported to him by Mr Ringin and some of the students'.

59 He said it was unfair and intrusive to install the CCTV for one purpose and use it for another, particularly where the school's teachers were told that CCTV was installed 'for purposes unrelated to their employment'. He noted that Mr Craig conceded the teacher was entitled to know how his or her performance was to be assessed. Mr Harding said that when CCTV was installed to deal with one problem viz. vandalism and used for another, viz. to monitor work performance 'the CCTV system takes on a covert character'. Mr Harding said that the reference to student safety made by Mr Craig and Mr Hibbins:

does not convert CCTV into a fair means of collecting the personal information. The collateral purpose remained undisclosed until it was referred to for the first time under cross-examination in this Tribunal.

60 He submitted that since the information had been wrongly collected it should now be destroyed.

61 If this submission was accepted, that would be the end of the matter and it would be unnecessary to consider issues as to use of information which had been wrongly collected. On the other hand, if this primary submission failed, it would be necessary to turn to contentions that the information even if validly collected had been wrongly used. According to Mr Harding the use was for an unrelated secondary purpose. He summarised these uses for secondary purposes as follows:

(a) On 7 November 2002 Mr Craig used the Personal Information by viewing the CCTV footage of Ms Ng's 31 October 2002 for the purpose of confirming accounts of Ms Ng's teaching given to him by students;

(b) On 7 November 2002 Mr Craig used the Personal Information in a letter of the same date setting out allegations referrable to Ms Ng's teaching performance;

(c) Sometime after 7 November 2002 Mr Craig used the Personal Information by showing the CCTV footage to Mr Dwyer and Mr DeMelis for the purpose of seeking their reaction to Ms Ng's teaching performance;

(d) On or about 18 November 2002 Mr Craig used personal information about Ms Ng by observing her in class through the means of the CCTV camera. It is submitted that Ms Ng's evidence on this point should be preferred to that of Mr Craig;

(e) On 26 November 2002 Mr Craig used the personal information in a disciplinary interview. In the same interview he disclosed the contents of that personal information without Ms Ng's consent to a representative of the Australian Education Union and the College's Assistant Principal, Anna Blatt.

(f) On 23 December 2002 Mr Craig used the Personal Information in support of a request to Mr Peter Hibbins, Manager, Conduct and Ethics Branch of the Department, that the Department take action against Ms Ng under S.45(1) of the Teaching Service Act 1981;

(g) On the date and in the request referred to in (f) Mr Craig disclosed the Personal Information to Mr Hibbins without Ms Ng's knowledge or consent;

(h) On 28 May 2003 Ms Kim Bannikoff of the Department by notice advised Ms Ng that he had decided to commence an enquiry under S.45(1) of the Teaching Service Act 1981. In that notice Ms Bannikoff set out the allegations the Department intended to rely upon. The Department used the Personal Information in formulating allegations against Ms Ng;

(i) Ms Augustinus used the Personal Information by viewing the CCTV footage of 31 October 2002.

62 These uses, Mr Harding said, were opportunistic and unrelated to any primary purpose for collection. By reason of the Guidelines, he said it was not reasonable for Ms Ng to expect the CCTV would be used and disclosed against her in relation to her performance as a teacher. Insofar as the Department sought to justify the use of the information by resort to Principle 2.1(e), that exception was not available. First, he submitted that the reference in the sub-clause to 'unlawful' meant criminal activity not activity which was arguably in breach of the teaching service order. In any event, the test for such use is one of strict necessity. Mr Craig had statements from a number of students and therefore it is not necessary to play or rely upon the CCTV footage. Mr Craig and Ms Augustinus said the eyewitness testimony is 'coherent and credible'.

63 Nor said Mr Harding was the exception in Paragraph (f) of Clause 2.1 available. He said the enquiry under Section 45 of the Teaching Service Act 1981 was 'inquisitorial in nature'. The delegate has yet to commence the enquiry and has not exercised any power to require the CCTV footage under Section 48 of the Teaching Service Act. 'It cannot be said the use and disclosure to the delegate is required or authorised merely because there is to be an enquiry.'

64 He submitted there was no implied power to conduct, as it were, a preliminary investigation under Section 45. Such provision was to be found in Part 5 of the Teaching Service Act 1981 but not in connection with Section 45.

65 As to Principle 4, Mr Harding said that Mr Craig breached Principle 4.1 by his access to and disclosure of Ms Ng's personal information. He breached Clauses 2.2 and 4.1 by showing the material to other teachers. He breached Clause 4.1 by using the CCTV 'to monitor teacher performance'. He said by repeated use of the material for this purpose, the Department had flouted its own guidelines and by proposing to rely upon the footage and Section 45 enquiries the Department 'has seriously sanctioned [the breach of the guidelines] by is officers'. Mr Harding said:

Further, the evidence shows that Mr Craig disclosed details of complaints about Ms Ng to students. It is submitted that such disclosures constitute a misuse and unauthorised disclosure of personal information contrary to IPP 4.1.

66 Mr Harding also said that the exemption created by Section 10 of the Act was inapplicable. He said the exemptions provided by that section applied only to courts and tribunals and the staffs of courts and tribunals. In any event he said:

The S.10 exemption could only apply in relation to the exercise of judicial or quasi judicial functions by a person who holds quasi judicial office and is an exemption from their collection, holding, management, use, disclosure or transfer of personal information. The evidence demonstrates that Ms Ng's complaint is directed to the acts and practices of the School and the Department through Mr Craig, Ms Augustinus and Mr Hibbins. None of these people exercise judicial or quasi judicial functions, let alone hold office of that type.

67 He said the Secretary of the Department does not hold quasi judicial office. He held office at the relevant time unde the Public Sector Management and Employment Ac 1998 under Sections 12 and 13. According to Section 20 as the Agency's Head, he held the rights, powers, authorities and duties of an employer. He said that any action taken by the Secretary under Section 45 was 'no more than an elaboration of his function as employer. His functions were administrative.' He referred to the remarks of Commissioner Lewin in Moran v Department of Education and Training in the Australian Industrial Relations Commission at paragraph 77 with regard to proceedings under Part 5 of the Teaching Services Act 1981.

68 Next, he said the teachers, whilst they might be officers were also employees. He referred to Section 3 of the Teaching Service Act and said that by virtue of Teaching Service Orders teachers were subject to detailed direction. He referred to Macklin et al The Law of Employment, 5th Edition, pages 34-40. He referred to the existence of industrial instruments under the Workplace Relations Act 1996, namely the Teachers' Victorian Government Schools Conditions of Employment Award, 1995 in the Victorian Government School Agreement 2001. He said therefore, the Secretary was not a Tribunal. Section 45 merely asked the Secretary to form an opinion not to resolve a dispute between parties.

69 Nor said Mr Harding did Section 13 give any exemption in the present circumstances. It would operate only if the Department could be regarded as a law enforcement agency. As regards to sub-paragraph (g)(i) of the definition of law enforcement agency as being an agency responsible for the performance of functions or activities directed to:

The prevention, detection, investigation, prosecution or punishment of criminal offences or breaches of the law imposing a penalty or sanction for breach

The definition is plainly concerned with State agencies that exist to enforce the law. The respondent is not such an agency.

70 He noted that according to Mr Hibbins, the Conduct and Ethics Branch within the Human Resources Department devotes itself mainly to providing support to principals in managing performance by teachers. Mr Harding said:

If the Tribunal takes a different view, it is submitted that the School is plainly not such an agency.

71 He said Section 45 of the Teaching Service Act is not a law imposing a penalty or a sanction. He referred to the judgment of JD Phillips J (as he then was)in Director of School Education v Merit Protection Board (1994) 8 VAR 19. He said that Section 45(3) merely bestows on the Secretary discretionary powers to deal with the employment of a teacher in light of the Secretary's satisfaction as to the teacher's capability or fitness. These powers are not punitive. He referred to New South Wales Bar Association v Evatt (1968) 117 CLR at 103; Ha v Pharmacy Board of Victoria [2002] VSC 322 at [94] per Gillard J. He said that whilst proceedings could have been commenced under Part V of the Teaching Service Act the enquiries of Ms Augustinus 'were directed toward the question of Ms Ng's fitness as a teacher'. In any event said Mr Harding, the exemption applied only if the law enforcement agency believed on reasonable grounds that non-compliance with Information Privacy Principle 2.1 was necessary. He said the evidence did not disclose if any of Mr Craig, Ms Augustinus or Mr Hibbins considered that issue. In any event he said that the eyewitness accounts given to Ms Augustinus were sufficient and the CCTV was not decisive to her recommendation which she would have made in any event.

72 Mr Pizer made elaborate submissions in the course of the proceeding. It is no disrespect to his careful and comprehensive presentation that in the circumstances I need to refer to his contentions only insofar as they are necessary to indicate the reasons for my conclusions.

73 First, as previously indicated, the respondent to this proceeding is the Department of Education and Training. There is no attempt on the part of the respondent to distinguish itself from the 'school', if a school, as distinct from some other body such as the school council, is a separate entity. (School councils are incorporated by Section 13 of the Education Act 1958.) Of course the Department itself is not an entity, merely an emanation of the Crown in right of the State of Victoria, though it is treated as having a separate legal personality by the Information Privacy Act. The hearing was conducted as far as I can see on the basis that the Department was vicariously liable for the acts and omissions of all its Departmental officers including Mr Craig and the staff at the school. I need say no more then about any liability of the school.

74 The next preliminary observation that I make is that many of Mr Harding's submissions appeared to proceed from the view that an infringement of the Department's CCTV Guidelines was by its very nature also an infringement of the Information Privacy Principles given the force of law by the Information Privacy Act 2000. There is nothing in the Information Privacy Principles which either expressly or implicitly has that effect; nor is there anything having that effect in the body of the Information Privacy Act. Other things being equal, the terms of the Guidelines might be regarded as rendering them relevant to the operation of the Information Privacy Act on the basis of some sort of reasonable expectation that matters would be dealt with according to the Guidelines. As previously noted, however Ms Ng only became aware of these Guidelines in 2004. She had no expectations based on those Guidelines in 2002.

75 The Guidelines include no penalty for non-observance. More pertinently this Tribunal is given no power to enforce these Guidelines. Independently of the correctness or otherwise of the view expressed by Mr North that the existence of school councils established under Section 13 and the following sections of the Education Act 1958 deprives the Guidelines of any executive force, a question upon which I express no opinion, for the reasons given I do not believe that these Guidelines are relevant to the determination of questions under the Information Privacy Act 2000. As previously noted the Department has produced a policy for the purposes of this Act and to the extent that there is any policy background to be considered, it is that document which should be referred to.

76 The next question to consider is whether there has been any violation of Clause 1.1 of the Information Privacy Principles. Mr Harding's submission was that the word 'necessary' in the relevant sub-clause meant 'essential' so that nothing could be regarded as necessary which was not essential. If the functions of the Department could be carried out without the particular collection of information, therefore the connection was not necessary according to this analysis.

77 Mr Pizer however submitted that no such strict meaning should be given to the word 'necessary' in this context. He referred to the decision of the High Court in Pelechowski v The Registrar Court of Appeal (NSW) 1999 198 CLR 435. A creditor recovered a judgment in the District Court of New South Wales and the judge made an ancillary order restraining the judgment debtors from selling, disposing of or encumbering their interest in a house 'until further order or payment of the verdict'. One of the debtors was held in contempt. On appeal to the High Court there was a challenge as to the validity of the District Court's order. The High Court held that there was no express power in the District Court to make such an order and the Court's implied jurisdiction as an inferior court extended only to everything which was necessary for the exercise of that Court's express jurisdiction. Gaudron, Gummow and Callinan JJ said at [51]

The term 'necessary' in such a setting as this is to be understood in a sense given it by Pollock CB in Attorney General v Walker [(1849) 3 Ex 342, 255-6] namely as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of a specific remedy for enforcement provided in Div 4 of Pt 3 of the District Court Act. In this setting, the term "necessary" does not have the meaning of "essential" rather it is to be "subjected to the top scale of reasonableness". (1999) 198 CLR 435, 452

I accept that submission.

78 Reference may also be made to a decision of the Full Federal Court of Australia in Proprietors Unit Plan No. 52 v Gold (1993) 116 CLR 638. The body corporate was seeking to recover an expenditure which it made by way of legal costs which it said was rendered necessary by Mrs Gold's alleged breach of the Articles of the body corporate. The Full Court approved the approach of Allen J in State Drug Crime Commissioner of NSW v Chapman (1987) 12 NSWLR 447 at 452 where His Honour once again referred to the dicta of Pollock CB in Walker's case and adopted His Lordship's statement that:

It may be stated as a general rule that those things are necessary for the doing of the thing which are reasonably required or which are legally ancillary to its accomplishment. (1993) 116 CLR 638, 640-641

79 In the State Drug Crime Commission case, Allen J was considering a provision of the State Drug Crime Commission Act 1985 to the effect that a member of the Commission was not to be required to produce in court any document that had come into his custody or control in the course of the exercise of functions under the Act or to divulge matters or things which had come to his notice except where it was necessary to do so for the purposes of a prosecution. Defendants in a committal proceeding before a magistrate subpoenaed documents from the Commission. It resisted production on the basis of the provision just referred to. His Honour adopted the view of the concept of 'necessary' postulated by Pollock CB in Walker's case because he concluded that to do otherwise would subvert the fundamental right of an accused person to a fair trial.

80 Mr Harding in response to the submissions of Mr Pizer on the meaning of the word 'necessary' submitted that Pelechowski's case must be seen in its own very different context. In my view however, the context of Pelechowski's case is not so very different from the present one. In both cases the question is what is necessary for the performance of the functions of an organisation. In Pelechowski's case the organisation was the District Court of New South Wales. In the present proceeding it is the Department of Education and Training of the State of Victoria; but the underlying question is similar. It may be thought again, that the context here is vastly different from the one which confronted Allen J in the State Drug Crime Commission case but in my view the two situations are rather more similar than they would appear at first blush.

81 Here, there is of course no question of the rights of an accused person being subverted. Allen J however regarded this as something which Parliament could not have intended by way of reductio ad absurdum. He said that to accept the Commission's contentions would mean that at trial or committal only the damaging material against an accused person or defendant held by the Commission need be produced and anything exculpatory could be held back. The reductio ad absurdum here is that to require analysis of what is necessary by reference to what is essential would cast on a decision maker interminable and intractable questions as to:

(a) What the functions of an organisation were; and

(b) What is essential for the performance of those functions.

82 To take one example, given an education system has operated in Victoria since the early days of settlement and at least in a form very similar to the present since the enactment of the Education Act 1872, and for most of the time without the availability of video surveillance equipment, it is difficult to say that collection of information by CCTV is essential to the conduct of an educational system. The system operated for a century and more without CCTV. Again, it was suggested that there were certain special considerations relative to computer rooms which in the pre-video age did not exist. One imagines similar considerations could have applied to science blocks, and physics and chemistry laboratories in the past but by one means or another they were operated.

83 The application for approval of the installation of this CCTV said that one of the purposes was to allow the computer rooms to be open when a teacher was not present and supervising, therefore, said Mr Harding, it was not essential because a teacher was in attendance and supervising to have the CCTV system operating whilst a class was in progress. Equally, one might ask was it necessary, in the sense of essential, to give students access to computer rooms outside ordinary class hours, or was it merely reasonable and expedient. Is it essential for the Department to teach computer studies at all? If neither of these things is essential it is difficult to see that CCTV collection of images in the computer rooms is essential.

84 I do not believe that Parliament intended these sorts of imponderable problems to be thrown up in an information privacy dispute. Therefore I believe the more relaxed meaning of necessity postulated by Pollock CB in Walker's case is appropriate, that is, is the collection in question here reasonably required or legally ancillary to the accomplishment of the Department's functions?

85 In my view, the evidence disclosed that the operation of the CCTV was reasonably required and ancillary to the attainment of the performance of the Department's function in operating a school system. It was not suggested that the installation of CCTV was not a reasonable response to the need to monitor the computer rooms. Mr North said it would be possible to turn the system on and off depending on whether a class was in progress but he thought this would create needless complication. Again, in my view that is a reasonable view and therefore a system which records constantly is reasonably adapted to the attainment of the Department's functions in providing education in computer subjects.

86 There is no breach of Information and Privacy Principle 1.1.

87 Similarly, in my view there is no breach of Information Privacy Principle 1.2. No illegality was identified as to the installation of this CCTV and the warning notices give a clear indication that video surveillance is in progress. Ms Ng's outrage at the video surveillance seems to me to have arisen only ex post facto or as she said in cross-examination, after she received legal advice. The request to Mr Hawkes shows that she knew that video surveillance was underway and wanted to use it for her own purposes. When in his letter of 7 November, Mr Craig stated that he had viewed surveillance footage of Ms Ng, she made no particular complaint about it. Given what I have said already as to the relative reliability of the evidence of Mr Craig and Ms Ng and Ms Ng's failure to call Ms Daly as a witness, I also accept that Ms Ng consented to Mr Craig's viewing the video surveillance footage at the meeting of 26 November.

88 Nor do I believe that Clause 2.1 of the Information Privacy Principles has been breached. The exemptions constituted by paragraphs (a) and (b) are in my view made out. In considering the operation of the exemption from the primary rule in Sub-clause 2.1 it is necessary to establish, first, what the putative primary and secondary purposes for the use of the relevant personal information might be. The submissions made by the parties gave no particular attention to the meaning of the word 'purpose" in this context. In the famous case of Newton v Commissioner of Taxation [1958] AC 450 as to the operation of the now repealed anti-avoidance section 260 of the Income Tax Assessment Act 1936 Lord Denning speaking for the Judicial Committee of the Privy Council said 'the word "purpose" means, not motive but the effect which it is sought to achieve - the end in view' [1958] AC 450, 465. It is sometimes said therefore, that the determination of the purpose of a thing or event calls for an objective enquiry rather than the subjective enquiry called for when one seeks to determine the intent with which an individual performed a particular act.

89 Despite authorities such as Newton, in the present context, 'purpose' should be regarded as synonymous with the intent with which the personal information was collected. A purely objective analysis of the purpose of collection might tend to focus upon the capacities of the collection system, here a CCTV system. The present CCTV operates 24 hours a day. It could be regarded as an all 'seeing eye', at least within the areas which it covers. An analysis which takes this as its jumping off point would be likely to postulate so wide a purpose for the system as to frustrate the manifest intention of the Information Privacy Act and the Information Privacy Principles to limit and constrain the use of personal information.

90 What then was the intent with which this information was collected? The CCTV system itself has no intention. Presumably the intention is to be established by reference to the intention with which the system was established and set into operation. As previously noted an approval was granted by the Department's Emergency and Security Management Unit on the basis of a request which nominated the 'reason' for the CCTV use 'except for graffiti and vandalism in and near student toilets, theft and vandalism in computer room'. All this however was after the event. On 8 November 2001 Mr Craig stated the purpose of the CCTV system as being 'to minimise vandalism and to monitor student use of computers and, in particular, the internet'. Mr Harding's submission sought to narrow the purpose to the one shown upon the application. Mr Pizer however, submitted that a wider purpose for the system existed namely:

To have a visual recording of what takes place in the computer room in the event that a "relevant incident" occurred (so that the incident may be investigated) and, where appropriate, action taken in relation to it.

91 I do not believe that the application to the Department's Emergency and Security Management Unit can be the be all and the end all of the primary purpose. This was after all an application made after the event. It fails to mention at all the monitoring of student use of computers, in particular the internet referred to in Mr Craig's memorandum.

92 Contrariwise there is no reference in either document to the somewhat slippery concept of an 'incident' which was referred to by many of the respondent's witnesses. I was provided with no definition of what an 'incident' might be nor any but the most general indication as to what responsibilities there were resting upon whom to report on 'incidents'.

93 In my view the various matters referred to in Mr Craig's memorandum and the ex post facto application are to be regarded as examples of a general phenomenon, namely student misbehaviour and inappropriate conduct. In my view, that is to be regarded as the purpose for which the personal information by way of visual image from the CCTV was collected. The next question is, whether in viewing the material as he did and in using it as a basis for his reference to the Department and showing it to other persons, Mr Craig was using the material for a secondary purpose and whether other Departmental officers such as Ms Augustinus would be using the material for an unrelated secondary purpose as they viewed it.

94 In the circumstances I believe the secondary purpose for which Mr Craig viewed the CCTV was to judge the quality of Ms Ng's classroom management or to put it another way, the degree to which she managed the students' inappropriate behaviour. It is common ground that the Department and all those charged with the responsibility of administering a school have a duty of management and a duty to restrain inappropriate behaviour by students both in the interests of efficient education and the safety of the relevant student and his or her fellow students. For instance, Teaching Order No. 165 made under Section 11 of the Teaching Service Act places a duty upon members of the service, viz. teachers to be responsible for 'the general care, safety and welfare of students attending the school' and that they ensure 'safe working practices in the school in accordance with the Occupational Health and Safety Act 1985' [a statute recently repealed and re-enacted but in force under that name in 2002]. See Clause 3.15(6) and (7). The famous case of Richards v The State of Victoria [1969] VR 136 is an example of the teacher's Common Law duty to keep order in the classroom. The teacher's duty to deal with inappropriate student behaviour is one side of the coin. The other side of the coin is the student misbehaviour itself. The high spirits of young people inevitably lead to inappropriate behaviour unless property managed. The link between the two is clear, undeniable and inextricable. To review the quality of the efforts of a teacher in classroom management in the face of inappropriate behaviour is a purpose clearly related to monitoring the inappropriate behaviour itself.

95 Ms Ng should reasonably expect that the CCTV footage would be used for the purposes of reviewing her classroom management. First, the inextricable link between inappropriate behaviour by students and the quality of teachers' management of that behaviour is so close as to render it reasonably foreseeable by a reasonable teacher that footage taken for the one purpose should be used for the other. Secondly, Ms Ng was told by Mr Craig in his letter of 7 November that he had viewed the CCTV footage of the class on 31 October. She made no complaint as to his having done that in her letter of 8 October. She herself assumed that it would be proper for her to view the CCTV footage, presumably in connection with a self-review of her classroom management when she asked Mr Hawkes for access to it. Finally, as Ms Augustinus observed, if available, a video of an incident is the best evidence of precisely what happened and may prove a relatively objective source to resolve conflicts in eyewitness accounts as to precisely what occurred in a computer room. In the present case, Mr Craig agreed that the eyewitness accounts of the events of 31 October were relatively consistent; but sub-clause 2.1(a)(ii) of the Information Privacy Principles is looking at the general situation rather than the specifics of a particular accessing; that is, any reasonable teacher must know that there will be occasions in which there is a sharp conflict between eyewitnesses as to precisely what did or did not happen in an incident at school which should be resolved by any available CCTV footage. It follows that the two limbs of exemption created by Information Privacy Principle 2.1(a) have been made out.

96 In my view, in seeking counsel and guidance from other teachers with some knowledge of the problem, namely Messrs Dwyer and DeMelis, Mr Craig was acting in pursuance of that related secondary purpose. Clearly, those involved in the discipline system within the Department are too. With respect to the showing of the footage to Ms Daly, in light of the finding that I have made that Mr Craig's evidence should be preferred on this point, Clause 2.1(b) justifies that use of the personal information. I prefer Mr Craig's evidence that he did not view Ms Ng 'live' on CCTV to Ms Ng's assertion that he did.

97 It follows from what I have said that by a parity of reason the applicant's claim based on sub-clause 4.1 of the Information Privacy Principles relative to Mr Craig's showing of the CCTV footage to third parties, must likewise fail.

98 There is a separate claim based upon an allegation that Mr Craig disclosed, threatened Departmental action against Ms Ng to some three students. Mr Ng was able to give no direct evidence or point to any direct evidence as to what led these students to make the reported remarks to her. The only direct evidence on this point comes from Mr Craig. He says that he interviewed a number of students including the three who spoke to Ms Ng. He told them that there was a confidential enquiry into Ms Ng's performance as a teacher. He said that at the time he had this conversation with the students and indeed at the time that they spoke to Ms Ng, he had not determined to refer the matter to the Department for a Section 45 enquiry. The question then becomes whether the disclosure which Mr Craig admits he made to these students was offensive to sub-clause 4.1 of the Information Privacy Principles. The next question is whether a statement made by Mr Craig to the three students constituted a misuse, loss, unauthorised access, modification or disclosure of personal information. The personal information that is the subject of the present proceeding is the CCTV footage. It is difficult to see that the fact that Mr Craig had elected to carry out an investigation of Ms Ng could fall within the definition of personal information. For that reason this claim too must fail.

99 It follows that Ms Ng's application as a whole fails and that the Tribunal must find that her complaint is not proven and should be dismissed.

100 In the circumstances it is unnecessary and I think undesirable to express any view on the numerous additional interesting and difficult questions which the parties' submissions in this proceeding raised.

101 I have not heard full submissions as to costs. The only submissions I have heard from the parties relate to Sections 43(1)(b) of the Information Privacy Act 2000 and were made upon the premise that the complaint were found proven. Accordingly, I will reserve the question of costs.