NZ v Department of Housing [2005] NSWADT 234

CITATION: NZ v Department of Housing [2005] NSWADT 234 DIVISION: General Division APPLICANT PARTIES: NZ RESPONDENT Department of Housing FILE NUMBER: 053291 HEARING DATES: 16/09/2005 SUBMISSIONS CLOSED: 16/09/2005 DATE OF DECISION: 16/09/2005

BEFORE: O'Connor K - DCJ (President) APPLICATION: Review of conduct of public sector agency MATTER FOR DECISION: Jurisdiction LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Privacy and Personal Information Protection Act 1998 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT C Valacos, solicitor ORDERS: Orders made on 16 September 2005:; Application dismissed.

REASONS FOR DECISION 1 These reasons are issued following a request made by the applicant pursuant to s 89 of the Administrative Decisions Tribunal Act 1997 in respect of an oral decision delivered on 16 September 2005. In that decision, the Tribunal dismissed an application for review of the conduct of a public sector agency (the Department of Housing) made 23 August 2005 under s 55 of the Privacy and Personal Information Protection Act 1998 (the Privacy Act) because a precondition to jurisdiction had not been demonstrated by the applicant, namely that the applicant had standing to apply. Section 55 provides (emphasis added): ' 55 Review of conduct by Tribunal (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.' 2 As has been characteristic of several applications that the applicant has made to the Tribunal, she filed in support of her application a vast number of documents, in this instance hundreds of pages. 3 The present application was listed for a planning meeting on 12 September 2005. The question was raised as to whether the Department had been given an opportunity to consider, by way of internal review, the concerns the subject of the application. The applicant was unable to identify from among her material, to the satisfaction of the Tribunal, a communication in the nature of an application for internal review. The Tribunal asked the Department if it could check its files and see whether an application for internal review might have been filed. The Tribunal listed the application for hearing on 16 September 2005 to consider its dismissal. The Department filed an affidavit from Mr Valacos, solicitor with the Department, sworn 15 September 2005 (Ex A). 4 The following is a (slightly revised) record of the oral reasons given on 16 September 2005, dismissing the application. 5 PRESIDENT: Further to the previous comments, Mr Valacos has placed before me an affidavit from him setting out material from within the Department that might conceivably be seen as constituting an application for internal review under the Privacy Act by NZ. 6 It is the case that at last Monday's planning meeting NZ did refer to a letter of June 2005 as being her application for internal review and it seems that the Department has been able to discover such a letter and that is Annexure B to Mr Valacos' affidavit. I have perused the letter and most of the matters raised bear no relationship to the subject matter of the Privacy Act. 7 They could be matters, though, that would be understood by some as involving privacy issues using the broad or common understanding of that term that is often found in the community. A number of the issues raised have to do with people engaging in activities that might be described as ones relating to intrusion into the personal space of NZ. Those kinds of claims are sometimes described as 'territorial privacy' claims. 8 The State legislation that is relevant to today's proceedings has to do with information privacy. More particularly s 53 provides aggrieved persons with a right to obtain internal review of certain conduct. The application must relate to the 'conduct' of a public sector agency. The term 'conduct' is in effect defined in s 52 as the contravention by a public sector agency of the information protection principle that applies to the agency. 9 So there must be some apparent connection between the conduct identified and some possible contravention or breach of one of the information protection principles. 10 The Tribunal has said in other cases that it is not necessary for the applicant for internal review to be particularly precise about exactly what information protection principle is in issue. But the application for internal review does have to raise conduct on the part of the agency which might reasonably be able to be seen to have something to do with the information protection principles and their application. 11 I do not think this letter reaches that stage of clarity. There is some reference to records of information in some parts of the allegations. The only one that might specifically involve the Department is the fourth paragraph that refers to Estella Yuen who, from my recollection is one of your officers I think Mr Valacos. But again there is a lack of any clarity as to how whatever she might have done connects up with the information protection principles. The relevant paragraph says: 'Such as infringing false claims on letters from Estella Yuen May 2002 with my personal privacy and details on it upsetting me and threatening my tenancy if I use disability parking. When I suffer illness entitled to have disability parking it is intimidating, infringing to target me from everyone else in the block and causes me crying, shaking, fear and dread making'. 12 There is insufficient clarity there to indicate what it might be, more specifically, about Estella Yuen's communications that involves any transgression of the privacy legislation. There is other broad language of that character through the document. 13 So I think in the circumstances the point that Mr Valacos makes is well made. This document, despite the first few words 're Privacy Act 1998', and the handwritten words on the top of the letter 'Internal Review Request Complaint' in handwriting (it is accepted that this is NZ's handwriting), is insufficient to give rise to an application which raises to any sufficient degree conduct of a public sector agency of the kind to which the Act is addressed. 14 So for those reasons I am satisfied that there has not been a competent application for internal review. Therefore this matter is not properly before the Tribunal. It is mandatory under the scheme of the Privacy Act that there be an application for internal review. Obviously there is a matter of judgment involved on the part of both the Department in the first instance and the Tribunal later as to whether the threshold has been breached where the communication can be properly characterised as one fitting s 53 of the Act. 15 So the applicant has not established her standing to apply and therefore the Tribunal is without jurisdiction and the application is dismissed.