Appeal Panel - Internal CITATION: MG v Director General, Department of Education and Training [2004] NSWADTAP 45 APPLICANT PARTIES: MG RESPONDENT Director General, Department of Education and Training FILE NUMBER: 049028 HEARING DATES: 12/10/2004 SUBMISSIONS CLOSED: 10/12/2004 DATE OF DECISION: 10/19/2004 MG v Director General, Department of Education and Training DECISION UNDER APPEAL: BEFORE: Hennessy N - Magistrate (Deputy President); Robinson MA - Judicial Member; Antonios Z - Non Judicial Member CATCHWORDS: fail to exercise jurisdiction - leave to appeal out of time MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 033335 DATE OF DECISION UNDER APPEAL: 07/09/2004 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Privacy and Personal Information Protection Act 1998 CASES CITED: BQ -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 64; Y -v- Director General, Department of Education & Training [2001] NSWADT 149 APPLICANT REPRESENTATION: In Person RESPONDENT A Johnson, solicitor ORDERS: Appeal dismissed Background 1 MG was in a de facto relationship with a woman for four years from 1992 until 1996. The couple had two children. The surname of the children on their birth certificates is the same as MG's surname. In 2001 the children's mother enrolled them in a primary school under another surname and the children were known by that name. MG made considerable efforts to have the name under which the children were enrolled changed back to his surname and for the children to be called by that name at school. On 27 November 2002 the principal of the school wrote to MG to tell him that he had altered the official enrolment details of his children to the name on their birth certificates but that they would continue to be known by their other name. 2 On 17 September 2003 MG wrote to the Department of Education requesting an "internal review" of the principal's "conduct" not to call the children by his surname. The Privacy and Personal Information Protection Act 1998 (the Privacy Act) defines "conduct" to include conduct which contravenes an information protection principle. MG said that the principal's conduct breached the information protection principles in s 15 and s 16 which relate to ensuring that personal information held by an agency is accurate. 3 The Department wrote to MG on 27 October 2003 saying that the principal's conduct did not satisfy the criteria for a privacy internal review. Under s 53(3)(d) of the Privacy Act, an application for review must "be lodged at an office of the public sector agency within 6 months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct the subject of the application." MG conceded that his application was not lodged within the 6-month time limit but said that the Department should have extended the time for lodgement. The Department did not exercise its discretion to extend the time for the application to be lodged because they considered that MG's application had no merit. 4 MG was not satisfied with the Department's decision not to accept his application and he applied to the Tribunal for a review. The Tribunal dismissed MG's application on the ground that it did not have jurisdiction to review a decision by the Department to refuse to accept his application out of time. MG has appealed to the Appeal Panel against the Tribunal's decision. Issues 5 The issue is whether the Tribunal made an error of law in deciding that it did not have jurisdiction to entertain MG's application. MG's submission was that the Tribunal has jurisdiction under s 55 of the Privacy Act to review the Department's decision not to accept his application for internal review out of time. We need to examine the provisions which give the Tribunal jurisdiction to determine whether that is the case. Tribunal's jurisdiction 6 Statutory basis for jurisdiction. The Tribunal derives its jurisdiction from s 38 of the Administrative Decisions Tribunal Act 1998 (ADT Act). Pursuant to that provision the Tribunal does not have jurisdiction to review a decision unless another Act provides that applications may be made to it for a review of that decision or a class of decisions. In this case, although the Tribunal is reviewing conduct rather than a decision, this Tribunal has decided in previous cases that applications made under s 55 of the Privacy Act are applications for a review of a reviewable decision. (Fitzpatrick -v- Chief Executive Officer, Ambulance Service of NSW [2003] NSWADT 132 at [12]; ) That conclusion was not challenged in this appeal. The question in this case is whether a refusal to accept an application out of time is a decision (or class of decisions) made by the Department which s 55 of the Privacy Act gives the Tribunal power to review. 7 Scope of the Tribunal's jurisdiction. Section 55 of the Privacy Act states that: (1) If a person who has made an application for internal review under section 53 is not satisfied with: (a) the findings of the review, or (b) the action taken by the public sector agency in relation to the application, the person may apply to the Tribunal for a review of the conduct that was the subject of the application under section 53. 8 Section 55 of the Privacy Act gives the Tribunal jurisdiction to "review the conduct that was the subject of the application under section 53." Contrary to MG's submission, the "conduct" referred to in s 55 is not the conduct of the Department in refusing to extend time for him to lodge his application. It is the conduct that was the subject of his application, that is the conduct of the school principal in refusing to call the children by MG's surname. Section 55 does not give the Tribunal power to review any other kind of conduct or decision. In particular, it does not give the Tribunal power to review a decision not to accept an application for review out of time. That finding provides a complete answer to the issue raised by this appeal. Other submissions 9 Our conclusion is consistent with that reached by the Tribunal in BQ -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 64 and Y -v- Director General, Department of Education & Training [2001] NSWADT 149. A myriad of arguments and submissions were presented to the Tribunal in those matters, as they were to the Tribunal below in this matter. None of those arguments addresses the core question of how the Tribunal could have jurisdiction to review a decision to refuse to accept an application out of time, when there is no statutory provision conferring that jurisdiction on the Tribunal. We deal with some of MG's arguments briefly below. 10 MG submitted that because he was not satisfied with "the action taken by the public sector agency in relation to the application" as required by s 55, the Tribunal has power to review the Department's decision not to accept his application out of time. MG's argument is that the "action taken" by the Department includes the action taken in refusing to accept his application out of time. MG supports that submission by drawing an analogy between s 55(2) of the ADT and s 53(1) of the Privacy Act. Section 55 of the ADT Act gives the Tribunal power to accept an application even if an internal review has not been completed. While MG acknowledged that s 55 does not apply to internal reviews under the Privacy Act, he said that if a comparison is made between s 53(1) of the Privacy Act and s 55(2) of the ADT Act it would reveal that the Privacy Act provision is essentially a summary of the ADT Act provision. 11 Having examined the two provisions we can find no relevant similarity. Even if we accepted MG's submission, it does not assist him. The reference to the "action taken" by the Department in s 55 of the Privacy Act, is a reference to the circumstances about which the applicant must be dissatisfied before applying to the Tribunal for a review of the conduct. While the applicant must be dissatisfied with the action taken by the agency before applying to the Tribunal, s 55 does not give the Tribunal power to review the "action taken" by the Department. It gives the Tribunal power to review the conduct that was the subject of the application. As we have said, that conduct was the principal's failure to call the children by MG's surname. 12 MG also submitted that the Department's decision not to accept the application out of time should not be split off from the Department's more general task of reviewing the conduct he has complained about. This is not a case of splitting off part of a decision. The Department has made a single decision: not to accept MG's application out of time. 13 MG made several other submissions about findings made by the Tribunal in BQ -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 64 and Y -v- Director General, Department of Education & Training [2001] NSWADT 149. Since our reasoning and conclusion does not rely on those findings, there is no need to address them in this decision. MG also adopted the submissions made by the Privacy Commissioner in the proceedings before the Tribunal. We have read those submissions. They do not address the meaning of s 38 of the ADT Act or that part of s 55 of the Privacy Act which confers jurisdiction on the Tribunal. Since those are the only provisions which are relevant, we do not find the Privacy Commissioner's submissions persuasive. Conclusion 14 The Tribunal did not make an error of law in concluding that it did not have jurisdiction to review the decision not to accept MG's application out of time. The reason that the Tribunal does not have jurisdiction is that no enactment gives the Tribunal jurisdiction to review such a decision. Order Appeal dismissed. 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. 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