OA v New South Wales Department of Housing [2005] NSWADT 233

CITATION: OA v New South Wales Department of Housing [2005] NSWADT 233 DIVISION: General Division APPLICANT PARTIES: OA RESPONDENT New South Wales Department of Housing FILE NUMBER: 043242 HEARING DATES: 27/04/2005 SUBMISSIONS CLOSED: 04/27/2005 DATE OF DECISION: 10/17/2005

BEFORE: O'Connor K - DCJ (President) APPLICATION: Review of conduct of public sector agency MATTER FOR DECISION: Principal Application LEGISLATION CITED : Privacy and Personal Information Protection Act 1998 Housing Act 2001 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT A Jungwirth of counsel ORDERS: 1. Application for review adjourned. Further planning meeting to be convened; 2. Respondent's application for costs adjourned.

REASONS FOR DECISION 1 This is an application for review of the conduct of a public sector agency, made under the Privacy and Personal Information Protection Act 1998 (the Privacy Act). The respondent is the Department of Housing (the Department). The applicant is a public housing tenant at premises managed by the Department. 2 Mr Jungwirth of counsel appeared for the Department at the hearing. The applicant appeared without representation. The hearing was preceded by a number of planning meetings. Both parties filed several documents in the course of the planning meetings and for the hearing. 3 The Privacy Act regulates the collection, retention, use and disclosure of personal information held in a permanent form by public sector agencies. It also confers on individuals rights of access and amendment in relation to this information. In this case there has been no dispute that the information held by the Department relating to the applicant falls within the meaning of 'personal information' for the purposes of the Act. 4 An individual may apply for review of the conduct of a public sector agency: ss 53, 55. 'Conduct' means, as relevant to this case, 'the contravention by a public sector agency of an information protection principle that applies to the agency': s 52(a). The information protection principles (IPPs) are set out at ss 8-19. They are subject to numerous exceptions and qualifications. Some of these exceptions and qualifications appear within the IPPs themselves, while others are found elsewhere in the Act or in subordinate instruments such as directions made by the Privacy Commissioner or codes of practices prepared by agencies and approved by the Commissioner. 5 The making of an application for internal review to the agency is a pre-condition to bringing an application for review to the Tribunal: s 55(1). The agency is given 60 days within which to deal with the application for internal review. If it does not make a decision on the application within that time, the applicant can apply to the Tribunal: s 53(6). The applicant can raise (s 55(1)): '(a) the findings of the review, or (b) the action taken by the public sector agency in relation to the application'. It follows, therefore, that the parameters of the application for internal review, reasonably construed, set the parameters for the Tribunal's inquiry. 6 This point is made because in this case it is apparent that the applicant only put in issue with the Department the circumstances surrounding the issuance to him of a 'natural justice' letter on 17 February 2004. Before the Tribunal the applicant raised a second set of concerns, to do with the contents of a Housing Appeals Committee decision issued 18 May 2004. The agency has sought to respond to those concerns as part of these proceedings. It has not taken any objection to the Tribunal dealing with the issues raised by the HAC decision. The Tribunal has decided that it cannot deal with these issues, at this point. 7 On the other hand, it will be seen that there is some lack of symmetry as between the matters put in issue by the applicant by way of his application for internal review and the extent of the evidence furnished to the Tribunal by the Department as to the conduct put in issue by the applicant. As a result it will be necessary for the Tribunal to reconvene to deal with that aspect of the matter. Circumstances 8 From 1992 to 1999 the applicant was the tenant of a home at Croydon, with his then wife ('Ms DML') and their two children. The couple separated in 1998. Both made rehousing applications to the Department. Ms DML was permitted to continue to live with the children at Croydon. The applicant was relocated, in September 1999, to Enfield. They divorced in 2000. The applicant remarried in May 2002. He continues to live at Enfield with his new wife ('Ms MF'). 9 In his evidence at hearing the applicant said that he had been told that officers of the Department had been making enquiries of neighbours and his former wife about whether he had continued to occupy the home at Croydon after relocating to Enfield. Early in February 2004 he contacted Ms Hughes, Senior Client Officer of the Department, at the Burwood office telling her what he had heard, and seeking clarification. 10 Ms Hughes gave affidavit and oral evidence at the hearing. 11 Ms Hughes stated that she had not known of any concerns over the applicant's tenancy. But after receiving a phone call from the applicant on 3 or 4 February 2004 that he had heard 'rumours' that he was being investigated, she examined the applicant's file. 12 Ms Hughes stated that the file contained a confidential report made by an officer of the Department that referred to allegations made to the officer that the applicant had for periods been sub-letting his unit at Enfield to his former wife's brother and that the applicant had been living with his former wife at Croydon. She said that this information had been given in confidence to the officer by another party. In addition, there was on the file an unsolicited and confidential statement dated 13 August, 2001 made by another party concerning the same allegations. 13 She decided that the allegations warranted further investigation. She called the applicant on or about 12 February, 2004 and told him that there may be a case to answer, and that she would be conducting the investigation. He agreed to come into the office on 17 February and she asked him to bring with him any evidence he wished to bring to rebut the allegations. 14 She said she considered that the investigation was required because there was enough evidence to suggest that there may have been a breach of the Tenancy Agreement regarding the rental rebate requirements under the Residential Tenancies Act. 15 She said that at the interview on 17 February 2004 she read out the allegations from the confidential document dated 13 August 2001 word for word but the source was required to be kept confidential. At the interview the applicant requested that the allegations be put in writing and she did this in the letter of the same date. She explained to the Tribunal that under normal circumstances when the Department receives information that needs investigating, a "natural justice" letter is issued to the tenant stating what the allegations are and giving the tenant fourteen days to respond in writing to rebut those allegations. She said that in this instance there was no opportunity to issue the letter since the applicant had contacted her and demanded an interview as soon as possible. 16 She sent him the following letter later that day: 'I am writing in regard to your tenancy at [Enfield] . As discussed on 17 February 2004, during an interview held at the Burwood Officer [sic], an allegation has made against you. I hereby specify those allegations in writing as promised. The Department of Housing has received information that indicates that you may be in breach of your Residential Tenancy Agreement and may have received a rental subsidy that you may not have been entitled too [sic]. Allegations made against you: + That during the years 2001 and 2002 you were living at [Croydon]. + That during the years 201 [sic] and 2002 you were sub-letting the premises at [Enfield] to Mrs [DML]'s brother without the department's written permission.