Privacy Law & Policy Reporter --- "Cases and complaints" [2002] PrivLawPRpr 33; (2002) 9(3) Privacy Law and Policy Reporter 58

Cases and complaints

BQ v COMMISSIONER ,OF POLICE, NSW ,POLICE SERVICE

[2002] NSW ADT 64 (26 April 2002)

The applicant (BQ) applied for an administrative position (temporary) within the NSW Police Service. He and other applicants were advised that a criminal records check would be conducted on recommended applicants. BQ was recommended for appointment and a criminal records check was conducted. The check revealed entries on the NSW Police ‘COPs’ data system relating to an incident in respect of which ‘Arrest Not Desired’ had been noted. The entries were discussed with BQ, who was subsequently offered a position with the Police Service. The position was made permanent sometime after BQ accepted temporary employment.

Internal review

After the position was made permanent BQ applied for an internal review under the PPIP Act ‘in respect ,of the [agency’s] use of personal information as part of a recruitment “criminal records” check’. This application was made about 10 months after the time that BQ first became aware of the conduct that was the subject of the complaint. BQ requested that the agency exercise its discretion under s 53(3)(d) to accept an application made out of time (that is, later than six months after the incident).

The agency declined to accept the application for internal review on the grounds that the application was out ,of time and that it would not use its discretion to extend the six month period. BQ applied to the Administrative Decisions Tribunal ,for a review of the agency’s conduct, including the alleged breach of one ,or more of the IPPs.

Tribunal’s jurisdiction

The primary issue considered in BQ’s case was whether the Tribunal’s review jurisdiction extended to the refusal of the agency to accept an application later than six months, on ‘such later date as the agency may allow’, as provided for by s 53(3)(d).[1]

The agency argued that, by reason ,of s 53(3)(d), the applicant was not a person who had made a competent application for internal review under ,s 53, and therefore the Tribunal lacked jurisdiction to deal with BQ’s application.

BQ submitted that the agency’s decision not to accept his application was itself a reviewable decision. By reason of s 55(1)(b), BQ submitted that the phrase ‘action taken by the public sector agency in relation to the application’ includes a decision to exercise or not exercise its discretion ,to accept a late application.

In support of his submission, BQ endorsed the submissions made on behalf of the Privacy Commissioner in Y v Director-General, Department of Education and Training [2001] NSW ADT 149 (12 September 2001). The Commissioner submitted in that case that an agency’s refusal to accept a late application for internal review was an ‘action taken by the public sector agency in relation to the application’ (s 55(1)(b)). It had ,been submitted on behalf of the Commissioner that that provision should not be construed as limited to the conduct or findings of the internal review, but rather should include what it says; that is, an ‘action taken ... in relation to the application’, including a decision not to accept the application. The Commissioner’s written submission noted that:

If paragraph (b) is not intended to apply to a refusal to conduct an internal review one would expect it to refer to the conduct of the review rather than to ,the application.

In Y’s case, President O’Connor held that an agency’s exercise of discretion to refuse to accept an application for internal review is not amenable to review by the Tribunal. In reaching this decision, President O’Connor accepted the respondent agency’s submission in that case that the Privacy and Personal Information Protection Act 1998 (NSW) (PPIPA) employs a findings/action dichotomy, as expressed in ss 53(7) and (8), and also employed in ss 55(1)(a) and (b). ‘Action’, in this dichotomy, is limited to action taken by an agency consequent on the findings of an internal review. President O’Connor further held that the scheme for internal review in PPIPA (Pt 5) replaces the general scheme for internal review of agency decisions in the Administrative Decisions Tribunal Act 1997 (NSW) (which does allow the Tribunal to review an agency’s decision not to accept a late application for internal review).

In BQ’s case, Britton A acknowledged [at para 33] that President O’Connor:

... did not expressly address the argument put by the Commissioner’s submission [in Y’s case] that the reference to ‘the application’ in s 55(1)(b) rather than ‘the conduct ,of the review’ was indicative of an intention to empower the Tribunal ,to entertain an application.

Britton A offers only a tentative opinion regarding the Commissioner’s argument in Y’s case, however, ,these obiter dicta are worth ,noting:

I am not entirely convinced that the words ‘in relation to the application’ should be restricted in meaning, as submitted by the respondent, ,exclusively to the remedies or orders made following an internal review. ,While as noted by the President there exists in Part 5 an apparent distinction between the words ‘action’ and ‘findings’, the words, ‘in relation to the application’ appear to me to be capable of broad interpretation and may embrace other action taken by the agency in relation the application, not just the orders made as a consequence of findings [at para 35].

Rather than accepting the findings/action dichotomy relied ,upon by President O’Connor in Y’s case, BQ’s case relies more upon a particular construction of the words, ‘an application for internal review under s 53’, in s 55. Britton A considered that a competent application must satisfy all conditions laid down in s 53(3):

Even if the words ‘in relation to an application’ are not intended to be ,given the narrow meaning suggested ,by the respondent, in the absence of a competent application for an internal review this application must fail irrespective of what steps the respondent took in respect of the purported application [at para 36].

Somewhat tautologically, Britton A concludes that an agency’s decision to refuse to entertain an application under ,s 53(3)(d) is fatal to such an application since ‘the application ... cannot be recast as an application for review of the agency’s ... refusal to accept a late application’ and thus the applicant cannot be considered to be ‘a person who has made an application for internal review under s 53’, and accordingly the Tribunal does not have jurisdiction to determine this application.

Comment

BQ’s case suggests that s 55(1)(b) may be construed more widely ,than was accepted by President O’Connor in Y’s case. It does not squarely challenge this reasoning, however, and nevertheless reaches, a similar conclusion — that the Tribunal lacks jurisdiction to determine an application where an internal review application was made out of time.

Lucy Blamey, Research and Policy Officer, Privacy NSW.

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[1] The respondent agency also submitted that the information referred to in BQ’s application was not ‘personal information’ by reason of s 4(3)(j). This issue was not dealt with by the Tribunal once it decided that it lacked jurisdiction to review the conduct of the agency.