Z v Department of Education and Training

Supreme Court of NSW|2011-03-18

REASONS FOR DECISION 1APPEAL PANEL (K O'CONNOR, DCJ (PRESIDENT), P MOLONY, (JUDICIAL MEMBER), Z ANTONIOS (NON-JUDICIAL MEMBER)): In 1996 the appellant was a casual teacher with the respondent Department. He was convicted in December 1996 for an offence where the victim was a pupil. He was sentenced to a term of imprisonment. As a result, the Department summarily dismissed him and placed him on the not-to-be-employed list. The Department gave him an opportunity to respond to its action, and in February 1997 confirmed its decision. The conviction was set aside on appeal later in 1997 and a verdict of not guilty entered. 2In 2000 the Department became subject to mandatory reporting obligations under the Commission for Children and Young People Act 1998 (the Act). It notified the Commission in the form prescribed by the Commission that it had completed 'relevant disciplinary proceedings' in respect of reportable conduct against the appellant on 25 February 1997. The law required the notification to be recorded by the Commission on a database kept by it to assist employers considering persons for employment in child-related work. 3In 2004 amendments to the Act passed in 2003 came into effect. They expanded the meaning of reportable conduct and referred to completed 'relevant employment proceedings' (see s 39). Employers who had lodged reports under the previous law were required to review those notifications. The Department reviewed its previous notification and submitted the following to the Commission on the form issued by it: 4The Department released this document to the appellant in response to an application for access made under the Freedom of Information Act 1989 (FOI Act). Section 39 of the FOI Act provides: 39 Right to apply for amendment of agencies' records A person to whom access to an agency's document has been given may apply for the amendment of the agency's records: (a) if the document contains information concerning the person's personal affairs, and (b) if the information is available for use by the agency in connection with its administrative functions, and (c) if the information is, in the person's opinion, incomplete, incorrect, out of date or misleading. 5He applied to amend the record. The Department refused the application. The Tribunal upheld the Department's refusal to amend, but directed that a notation be added exercising the power given by s 46, and specified the terms of the notation: see Z v NSW Department of Education and Training (No 2) [2010] NSWADT 238.

The Appeal 6The appellant now appeals. An appeal may be made on a question of law, and the Appeal Panel may give leave to extend the appeal to the merits: Administrative Decisions Tribunal Act 1997 , ss 112, 113. 7The appellant's original notice of appeal had four question of law grounds and five reasons as to why leave to extend to the merits should be granted. At hearing he withdrew Question (1). 8Questions (2), (3) and (4) are inter-related. Question (2) is expressed as: (2) The Tribunal erred in law by taking notice of the broader scope of 'relevant employment proceedings' when the alleged 'relevant disciplinary proceedings' took place before the legislative change of name. 9Question (3) is expressed as: (3) The Tribunal erred in law by considering that a decision to dismiss an employee summarily or to bar that employee from future employment may as a matter of law amount to a 'relevant employment proceeding'. The better view is that in law each of these proceedings is a separate issue. 10Question (4), as amended by submissions handed up at the appeal hearing, is expressed as: (4) The Tribunal erred in law by drawing the conclusion that 'the existence of a relevant employment proceeding does no more than condition the duty of an employer to notify' contrary to the weight of the evidence adduced in the proceedings.

Outline of Submissions 11The appellant has degrees in law and has represented himself at the appeal. He does not object to the document under notice continuing to exist, but argues that in its present form it is inaccurate, or otherwise misleading. 12At hearing, the appellant confirmed as accurate the Tribunal's description of his case, set out below: 5. The applicant argues that this information is incorrect or otherwise misleading and is seeking to have it amended pursuant to s.39 Freedom of Information Act 1989. The applicant does not seek to have his name removed from the list but rather wishes the information contained in two of the last three vertical columns to the right of the page to be changed. The first of these columns has a tick in the "yes" box, whereas the applicant argues that the "no" box should be ticked or, alternatively, that both boxes be left blank. The second vertical column requires no change, both boxes being blank. The third column has no box checked, whereas the applicant says that the "yes" box should be ticked, although leaving both boxes blank would be an acceptable outcome to him. It is this particular entry in this document that is under review in these proceedings. 13In effect the appellant reiterated this case at the appeal hearing. He questioned the accuracy of the author's understanding that 'relevant employment proceedings' had taken place, and as a corollary the question of the date that they could be said to have been completed. 14In rejecting the appellant's case on these points, the Tribunal informed itself as to the history of the legislation, it looked at the law that underpinned the document in issue, noted the expansion of the scope of reportable conduct effected by the amendments, and was satisfied as to the critical matter of whether there had been 'relevant employment proceedings' as asserted in column 1. 15The Department's evidence (via Ms Bilbe-Taylor) was that in acting as it did in December 1996 it relied on the power given by s 50(5) of the Teaching Service Act 1980 (TS Act) to dismiss summarily a temporary employee 'at any time'. It notified the appellant immediately that he had been placed on the not-to-be-employed list, gave him an opportunity to respond (no reply), and on 24 February 1997 confirmed that decision. 16The Department also gave evidence as to its further dealings with the appellant in relation to that listing, which it has never reversed. Its evidence is that after the conviction was quashed, it wrote to the appellant asking him whether he wanted his status on the list reviewed. It referred to its policy and procedures in relation to allegations of improper conduct of a sexual nature by a staff member against a student. It gave the appellant an opportunity to challenge the continued listing. 17Moreover, in March 2001 the Department advised him that the matters taken into account in continuing his listing, despite the quashing of his conviction, included the contents of his statement from the dock at trial referring to his out-of-school hours social interactions with his pupils. The appellant was given an opportunity to make submissions. The Department confirmed its decision to leave him on the not-to-be-employed list, by letter dated 18 May 2001. 18Following complaint by the appellant to the Minister for Education, there was a further independent review. The review also confirmed the decision, and he was so advised on 25 July 2001. The Department's submission is that the statutory basis for its actions in respect of placing the appellant on the not-to-be-employed list is found in the disciplinary provisions of the TS Act at ss 83 ff. 19In relation to the appellant's claim that the original notification was flawed, the Department's reply is that its original response to news of the conviction culminating in its decision of 24 February 1997 can properly be seen as 'disciplinary proceedings' for the purpose of the original definition. Alternatively, the wider span of activity ending in July 2001 can be seen as meeting the definition. The Tribunal agreed that the original response met the definition. 20The appellant pressed the argument at appeal that he has never been the subject of 'disciplinary proceedings' (the original definition) because the orthodox procedure for the making of complaints, investigating them, laying formal charges and hearing them set out at ss 83 ff of the TS Act has never been implemented. 21The Department's reply is that this submission reveals the real purpose of these proceedings, to obtain a ruling as to unlawfulness which will force the Department to undertake disciplinary proceedings, and, if it does not, withdraw the notification to the Commission. Among other things, that might give him the opportunity to confront his accuser many years after the court hearings and the events to which they related. 22The Department's submission is that his objective is a collateral one, and should not be allowed. It referred to the observations of Handley JA in an appeal from a decision of the Appeal Panel in another amendment case. Handley JA said, Crewdson v Central Sydney AHS [2002] NSWCA 345: 24 The appellant's attempt to use the Act as a vehicle for the collateral review of the merits or validity of official action should be rejected in any event. The Act is concerned with the accuracy of official records, not with the merits or legality of the official action recorded in them. Compare Re Resch and Dept of Veterans' Affairs (1986) 9 ALD 380, 386, 387 (Hall DP) and Hewitt v Grabicki 794 F. 2d 1373 (9th Circuit 1986), 1378.

Questions of Law: Consideration 23The document was created in response to the amendments of 2003 which expanded the scope of reporting. The question therefore is whether it accurately reports that a 'relevant employment proceeding' has taken place. It is no longer material whether the author of the record was correct in determining that the notification complied with the original Act's definition. Accordingly, we reject question of law (2). 24As to question of law (3), in our view, it would normally be enough for the purpose of meeting the requirement of 'accuracy' for the purposes of s 39 of the FOI Act that the evidence shows that the author made a reasonably-available judgement as to the matter of whether there had been 'relevant employment proceedings', taking account of any guidance or advice issued to assist the process. 25However, as the Tribunal examined the stricter question of whether, as a matter of law, the administrative actions to which the record refers met the definition, we will do likewise. 26'Relevant employment proceeding' is defined as: ... disciplinary proceedings (in this State or elsewhere) against an employee by the employer or by a professional or other body that supervises the professional conduct of the employee, being proceedings involving: (a) reportable conduct by the employee, or (b) an act of violence committed by the employee in the course of employment and in the presence of a child. 27'Reportable conduct' is defined widely (the exclusions are not relevant to this case) to include: (a) any sexual offence, or sexual misconduct, committed against, with or in the presence of a child (including a child pornography offence), or (b) any assault, ill-treatment or neglect of a child, or (c) any behaviour that causes psychological harm to a child, whether or not, in any case, with the consent of the child. 28(The amendments retained the retroactive element of the original Act extending the reach of the reporting obligation to 'disciplinary proceedings completed within the period of 5 years immediately before the commencement of this section.') 29The Tribunal accepted the Department's submission that the original action involved the exercise of the summary dismissal power given by s 50(5), and its later decisions to maintain his not-to-be-employed listing were seen as permissible by reference to the disciplinary provisions of the TS Act, at ss 83 ff. We note that the disciplinary provisions of the TS Act themselves provide for summary action of the same kind. The relevant provisions then and now are ss 85 and 86. Section 86 contemplates the taking of disciplinary action 'as if' the employee had been dealt with by the usual internal process. This is in effect a deeming provision. Provisions like s 86 are designed to deal with cases precisely of the kind that arose here. 30A disciplinary proceeding can be seen as constituted by the exercise of a power of summary dismissal where an opportunity to be heard has been given (even if after the event), whether or not the power is located in the part expressly directed to disciplinary procedures. The meaning given to 'disciplinary proceeding' need not be confined to proceedings of the kind contemplated by the provisions of the TS Act at ss 83 ff. The word 'proceeding' is an imprecise one, and takes colour from the statutory context in which it appears. See, for example, Blake v Norris (1990) 20 NSWLR 300 at 306 per Smart J; and Radmanovich v Nedeltjkovic [2003] NSWSC 350 at 357 per Barrett J. Here the context is a statute with the purpose of minimising risk to the safety and welfare of children. See further, AK v Director-General, Department of Education and Training [2008] NSWSC 1202 at [48]-[49] per Harrison AsJ. 31The appellant did not notify the Department of the fact that he had been charged when he had an obligation to do so. At his first trial the jury was unable to reach a verdict. At the second trial a verdict was reached. The police notified the Department. The offence was a very serious one. Not surprisingly the Department moved quickly in the way that it did. This, on any reasonable view, was an act of discipline, and an exercise of disciplinary authority. The proceeding that followed was a truncated one, rather than the more orthodox one seen in the provisions of ss 83 ff. But in our view that does not mean that it fell outside the scope of the definition. 32In our view there is no substance to question of law 3. 33Similarly in our view there is no substance to question of law 4. The occurrence of a relevant employment proceeding involving reportable conduct (as it is defined in the Act) is a pre-condition to the duty to notify. 34No errors of law have been established.

Collateral Attack 35The appellant does not concede that he is engaged in any attempt at collateral attack. The written submissions at first instance from the respondent do not reveal any reference to this argument. 36It may have been raised orally (we do not have a transcript). There is a passing reference to the point in the Tribunal's reasons for decision at [12]: 12 It should be noted that the issue is only whether the record is incorrect, misleading or out of date. The Tribunal is not a court of law and it cannot change the fact that notification of the applicant's name has in fact occurred. The Tribunal is only empowered by the legislation to direct amendment of the record under review, if amendment be appropriate: it has no general declaratory powers. The Tribunal is, of course, entitled to decide, in these proceedings, whether or not a relevant employment proceeding (or a relevant disciplinary proceeding ) has occurred, but only for the purpose of deciding whether amendment of the record under review is apposite. 37We agree with the basic position adopted by the Tribunal. The FOI Act regulates the content of records without, as we see it, being concerned with the legality of their creation. The personal records holdings of government agencies all have their origin in judgements about statutory powers. The right given by s 39 is about the records that are created in consequence of those judgements. 38Of course, the matter is more complicated in cases where the basis for the creation of the record gives rise to a recital within the body of the record as to the satisfaction of a pre-condition, as has occurred in this example - the tick 'yes' to 'relevant employment proceeding'. Nonetheless the Tribunal has resisted attempts to turn proceedings for amendment into reviews of the legality of the administrative processes that a record might arise from. In our view, all the FOI Act contemplates is that the Tribunal review the record placed before it for compliance with s 39(c) without going to underlying issues of legality of the exercise of statutory powers or the fairness of the procedures that led to their making. See also, GA v The University of Sydney [2009] NSWADT 230 at [48]-[56]; GA v The University of Sydney [2010] NSWADTAP 31 at [24]-[27]. 39Normally, the appropriate avenue is judicial review, as the Tribunal reflects in its reference to 'courts of law'. On the other hand, in a clear case where there is no factual substratum for the judgement giving rise to the record, we would see it as appropriate to intervene and amend the record (as to which, see Central Sydney Area Health Service -v- Crewdson (GD) [2001] NSWADTAP 44 esp at [66]). This case has a clear factual substratum. 40As to other circumstances where it might be appropriate for a Tribunal to entertain a collateral attack, see Douglas, 'Collateral Attacks on Administrative Decisions: Anomalous but Efficient', [2006] AIAL Forum 71 (Issue no 51); Edwards & Anor and Department of Planning and Infrastructure & Ors [2007] WASAT 101 (Barker J, President).

Leave to Extend to the Merits 41Where there are no errors of law identified in the Tribunal's reasoning process, it is unusual to reopen a case, extend to the merits and in effect re-try it. We have dealt with the Department's objection that the appellant is seeking to use the proceedings to mount a collateral attack on the way it exercised its duty of report, and its outcome. 42In relation to the application for leave to extend to the merits, the appellant gave the following reasons: (1) the issues are narrow ones; (2) need for the matter to be dealt with expeditiously, given that it has been before the Tribunal for years; (3) to enable correction of 'factual error' in the reasons of the Tribunal. (The appellant stated that the Tribunal was in error at para [5] in saying that he sought to have his name removed from the database of the Commission); (4) to enable parties to place all evidence before the Appeal Panel, contrary to para [12] of the Tribunal's reasons; and (5) to allow the appellant to revive his application for certain background documents to be excluded from consideration. 43The Department opposed any extension to the merits, on the basis that the Tribunal's decision was not affected by error in relation to the above points, and the record required no amendment. To that extent the Department disagreed with the Tribunal's order for notation, a subject we will deal with at the end of these reasons. 44The application for leave to extend to the merits in relation to the principal decision of the Tribunal is not granted. Were we to grant that application, it would simply reopen the issues with which we have already dealt. 45We deal below with the objections to the accuracy of the text of the Tribunal's decision, and related issues.

Text of Underlying Decision 46The Tribunal made a suppression order pursuant to s 75(2)(b) of the ADT Act prohibiting publication of the names of persons referred to in the applicant's evidence, two persons who were pupils at the time of the alleged offence (order made, 20 November 2008). In accordance with the usual practice of the Tribunal in cases relating to personal records claims the identity of the applicant is anonymised. 47The appellant has applied for a further suppression order to be made in relation to the text of the reasons for decision, expressing concern in relation to date references that appear in some paragraphs, and a description used for the offence charged. He considers that a creative researcher could link this information, and make searches on specialised legal databases with the result that his identity is revealed, and he is prejudiced as a result. He notes that he has no conviction record and has never been charged at any other time with any offence of a similar kind to the one referred to in this case. 48He also refers to a history of suppression orders in the criminal trial. We have no material relating to the reasons why they were made. 49We are not satisfied that any significant risk of prejudice to the appellant is demonstrated. 50The appellant also tabled on the day of the appeal hearing documents additional to those filed in accordance with the directions. One was a statement dealing with events in 1996 giving rise to his placement on the not-to-be-employed list; and the other a document headed notice of reply to the respondent's submissions. We have briefly examined these documents. In our view, in light of our conclusions it is not necessary to consider them any further. 51We accept, and to this extent record an error in the Tribunal's text, that the appellant's application does not go as far as asking for his name to be removed from the database of the Commission.

The Notation 52We mentioned earlier the Tribunal's decision that the amendment claim be acceded to, the extent that there be a notation added to the record, referring to the outcome of the criminal appeal. 53The Tribunal explained at [16] of its reasons why the record was misleading, out of date and inaccurate in not referring to this event. 54As it happens, both parties for different reasons are aggrieved by this aspect of the Tribunal's decision. The appellant's position is that he did not request a notation. As we understand his point of view, if the record is not to be amended in the way he prefers, he would have the present relatively anodyne record than one that refers explicitly to the occurrence of criminal proceedings. On the other hand, the Department argues that the record was accurate and no variation or notation is required. 55The right of notation is expressed as follows: 46 Notations to be added to records (1) If an agency has refused to amend its records, the applicant may, by notice in writing lodged at an office of the agency, require the agency to add to those records a notation: (a) specifying the respects in which the applicant claims the records to be incomplete, incorrect, out of date or misleading, and (b) if the applicant claims the records to be incomplete or out of date-setting out such information as the applicant claims is necessary to complete the records or to bring them up to date. (2) An agency shall comply with the requirements of a notice lodged under this section and shall cause written notice of the nature of the notation to be given to the applicant. (3) If an agency discloses to any person (including any other agency and any Minister) any information contained in the part of its records to which a notice under this section relates, the agency: (a) shall ensure that there is given to that person, when the information is disclosed, a statement: (i) stating that the person to whom the information relates claims that the information is incomplete, incorrect, out of date or misleading, and (ii) setting out particulars of the notation added to its records under this section, and (b) may include in the statement the reason for the agency's refusal to amend its records in accordance with the notation. (4) Nothing in this section is intended to prevent or discourage agencies from giving particulars of a notation added to its records under this section to a person (including any other agency and any Minister) to whom information contained in those records was given before the commencement of this section. 56The jurisdiction of the Tribunal on review of decisions refusing to amend a record (made in this instance in response to an application under s 47) is conferred by s 53(1) and (3)(c) as follows: (1) A person who is aggrieved by a determination made by an agency or Minister under section 24 or 43 may apply to the Tribunal for a review of the determination. ... (3) For the purposes of this section, a person is aggrieved by a determination: ... (c) in the case of a determination that relates to an access application made by the person under section 40, 47 or 49-the determination is to the effect that an agency or Minister refuses to amend the agency's records or that Minister's records, as the case may be, in accordance with the application, 57The right only refers to refusals to 'amend'. That in turn is the matter addressed by s 39. There is no express jurisdiction to review a decision to refuse a notation where one is made. 58The Tribunal's power on review is to make the 'correct and preferable' decision in relation to the application, and 'for that purpose' it may exercise any of the functions of the agency: see ADT Act, s 63(1) and (2). Here in any event there was never an application for a notation. Had there been such an application and a refusal, we doubt whether there is any jurisdiction, given the lack of reference to decisions in relation to notations in s 53(3)(c). Consequently, we doubt whether the making by the Tribunal of a direction for a notation was valid even though the Tribunal has a general power to exercise any of the functions of the administrator. 59Having regard to the agreed position of the parties and given the doubts we have expressed as to jurisdiction, we will make the order sought and rescind the notation. 60We will direct the Registrar to arrange for the contents of the notation to be deleted from the published version of the Tribunal's decision. We think it impractical to go any further than that. Some reference to the criminal appeal is necessary to understand fully the appellant's case, as has occurred in this decision.

Order

Decision under appeal upheld, except for the decision to add a notation.
Order that there be no notation.
Accordingly, the primary decision of the respondent is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal. Registrar/Associate 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: 10 August 2011

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Judgment (10 paragraphs)

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Cases Cited (4)