NZ v Commissioner of Police [2005] NSWADT 35

Pending Appeal :

CITATION: NZ v Commissioner of Police [2005] NSWADT 35 DIVISION: General Division APPLICANT PARTIES: NZ RESPONDENT Commissioner of Police, New South Wales Police FILE NUMBER: 043221 & 043226 HEARING DATES: 21/09/2004 SUBMISSIONS CLOSED: 09/21/2004 DATE OF DECISION: 02/22/2005

BEFORE: O'Connor K - DCJ (President) APPLICATION: Jurisdiction MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Freedom of Information Act 1989 Privacy & Personal Information Protection Act 1998 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT D Shepherd, solicitor ORDERS: ORDERS MADE 21/09/2004; 1. Application 043221 dismissed; 2. Application 043226 dismissed

DELIVERED EX TEMPORE REASONS FOR DECISION 1 Reasons delivered orally, as revised. 2 The two applications before the Tribunal were listed for dismissal today. 3 The first application is no. 043221. It is an application for review purportedly made pursuant to the Freedom of Information Act 1989 (the FOI Act). The second is application no. 043226. It is an application for review of conduct purportedly made under the Privacy and Personal Information Protection Act 1998 (the Privacy Act). Application No. 043226 4 I will deal first with application 043226. The application was lodged on 19 July 2004. That application is not in order. 5 It contains various statements on the part of the applicant, Ms [NZ], as to ways in which she believes the Police Service have infringed on her privacy and that of her son. The application was filed in the Tribunal prior, so far as the Tribunal is aware, to any notice being given to the Police Service of such a complaint or any opportunity being given to the Police to conduct an internal review of the alleged misconduct. There had been some correspondence between the applicant and the Police. 6 There has been reference made in today's proceedings to contact with Ms Marilyn Hamilton, Privacy Coordinator at the Police Service around 29 July 2004 and also reference to contact having been made with the Privacy Commissioner. 7 In my view, the point has not been reached where the Tribunal has obtained jurisdiction. The provision of the Act that is relevant is s 55 which provides that if a person who has made an application for internal review under s 53 is not satisfied with the findings of the review or the action taken by the agency, the person may apply to the Tribunal for a review of the conduct that was the subject of the application. 8 Now it seems to me that that provision requires that before any application is filed in the Tribunal, the agency is to be given some opportunity to consider the matter of concern and to take action. Now it may be that the action could be basically inaction by refusing to deal with the matter, in which case the applicant can then access the Tribunal. See s 53(6) which provides: '(6) The review [by the public sector agency] must be completed as soon as is reasonably practicable in the circumstances. However, if the review is not completed within 60 days from the day on which the application was received, the applicant is entitled to make an application under section 55 to the Tribunal for a review of the conduct concerned.' 9 But what we have in this instance is an application that was put on at the Tribunal before the Police were given any opportunity to respond. The Police are aware at the moment of the concerns that you have Ms [NZ]. So far as I can understand the evidence that has been put before me today both by you and Mr Shepherd (for the Police), Ms Hamilton (the Privacy Coordinator) is generally aware of your concerns. 10 They have the matter under review. So at this point I have to dismiss your application of 19 July 2004. That does not prevent you Ms [NZ] from coming back here in time with another application. 11 The application is dismissed. Application No. 043221 12 Now moving on to the Freedom of Information application. 13 That application was lodged on 13 July 2004 (and I note that as with the Privacy application the fee was waived). 14 I am satisfied from what I have heard today of this matter both from you, Ms [NZ], and from Mr Shepherd, and having scrutinised Mr Shepherd's file and having looked at all the papers you have put before me, that this is a matter that was the subject of a final determination in March 2003. 15 There was no internal review sought of that determination so again we are in a situation where a pre-condition for jurisdiction under the FOI Act has not been met. Section 34 provides relevantly: ' 34 Internal review (1) A person who is aggrieved by a determination made by an agency is entitled to a review of the determination. (2) An application for review of a determination: (a) shall be in writing, and (b) shall be accompanied by such application fee as the agency may determine, and (c) shall be addressed to the principal officer of the agency, and (d) shall specify an address in Australia to which notices under this Act should be sent, and (e) shall be lodged at an office of the agency: (i) if notice of the determination was given to the applicant — within 28 days after that notice was given, or (ii) if no notice of the determination was given to the applicant — within 49 days after the application was received by the agency, or (iii) in any case, within such further time as the principal officer of the agency may allow. …'. 16 The right to apply for review by the Tribunal is predicated on there having been first an internal review by the agency. See s 53(2) which provides: '(2) A review application may not be made: (a) while the determination is subject to a right of review under section 34 or 47, or (b) if the determination has been subject to a right of review under section 34 or 47 but no application for such a review of the determination was made while it was subject to that right, or (c) while any relevant complaint is being investigated by the Ombudsman. … (4) In relation to decisions under this Act that are reviewable decisions under the Administrative Decisions Tribunal Act 1997: (a) the procedures for internal reviews provided by this Act apply to the exclusion of section 53 (Internal reviews) of the Administrative Decisions Tribunal Act 1997, and (b) any reference in the Administrative Decisions Tribunal Act 1997 to an internal review of a reviewable decision under that Act is taken, in its application to a decision made under this Act, to be a reference to an internal review under this Act. (5) The provisions of this Division apply to a review application to the exclusion of section 55 (1) (d), section 58 and Division 2 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997.' 17 I should add that as best I can understand your objection to the final determination made under s 34 of the FOI Act on 26 March 2003, the objection is that you believe that not all the relevant documents were ever located by the Police. That is what we call a sufficiency of search objection. That could have been the subject of an application for internal review and an application for external review by the Tribunal if those matters had been brought forward in a timely way but they have not been brought forward in a timely way. I do not think that it is in the interests of justice to allow your application to proceed. 18 So I dismiss the application in file no. 043221. 19 These proceedings in the Tribunal are concluded. 20 [Ms [NZ] was then informed that she could lodge an application once the Police have undertaken their internal review, or if they have not undertaken the internal review in a timely way. She was informed that in their notice of the outcome of the internal review they were obliged to inform her of her rights in relation to applying for review by the Tribunal.]