Shirley v Director-General, Department of Education and Training [2009] NSWADT 140

CITATION: Shirley v Director-General, Department of Education and Training [2009] NSWADT 140

DIVISION: Equal Opportunity Division

APPLICANT Wayne Shirley PARTIES: RESPONDENT Director-General, Department of Education and Training

FILE NUMBER: 081085

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 18 May 2009

DATE OF DECISION: 15 June 2009

BEFORE: Britton A - Deputy President; Schneeweiss J - Non-Judicial Member ; Nemeth de Bikal L - Non-Judicial Member

CATCHWORDS: Complaint of age discrimination – employment

Administrative Decisions Tribunal Act 1997 (NSW) LEGISLATION CITED : Anti-Discrimination Act 1977 (NSW) Evidence Act 1995(NSW) Privacy and Personal Information Protection Act 1998 (NSW)

CASES CITED: Y v Director-General, Department of Education & Training [2001] NSWADT 149 EY v Department of Corrective Services (GD) [2009] NSWADTAP 25.

APPLICANT P Johnston, agent REPRESENTATION: RESPONDENT D Ward, barrister

ORDERS: 1. The subject documents are not inadmissible on the grounds advanced by the applicant 2. The adjournment application is refused.

REASONS FOR DECISION 1 These reasons concern two interlocutory applications made by Mr Wayne Shirley. He seeks a ruling about the admissibility of various documents filed by the respondent, the Director-General, Department of Education and Training (TAFE), and that the proceedings in which those documents were filed, which relate to Mr Shirley's complaint of unlawful discrimination on the ground of age, be adjourned. 2 The subject documents are annexed to a statement prepared by Ms Michelle Kennedy that was filed by the respondent on 19 December 2008 (Annexure E). Ms Kennedy was the convenor of the Selection Committee that considered Mr Shirley's application for appointment to the position of Head Teacher at the North Coast Institute of TAFE. Mr Shirley's application was unsuccessful. The subject documents include an email sent to Ms Kennedy by Mr Shirley on 23 February 2007, in response to a request for further information about his application. They also include two letters written by officers of TAFE addressed to Mr Shirley. 3 Mr Shirley asserts that TAFE, and its legal representatives, the Office of the Crown Solicitor, by filing the subject documents, have breached the Privacy and Personal Information Protection Act 1998 (NSW) (the Privacy Act). On 18 May 2009 he made an application to the Administrative Decisions Tribunal under s 55 of the Privacy Act in respect of that alleged contravention (ADT File no. 093128). 4 At a directions hearing held on 28 May 2009, an application was made on behalf of Mr Shirley, for the substantive proceedings to be adjourned until such time as proceedings 093128 are finalised. That application is opposed. 5 Mr Shirley is represented in these proceedings by agent, Mr Phillip Johnston. The respondent Director-General is represented by counsel, Ms D Ward. Documents provided to the Tribunal 6 The parties were invited to provide the Tribunal with brief submissions on Mr Shirley's application about the subject documents. Submissions prepared on behalf of Mr Shirley were filed on 16 January 2009 and 23 March 2009. In addition, Mr Shirley relies on a statement prepared by his agent, Mr Johnston, filed on 18 May 2009. 7 Submissions prepared on behalf of TAFE were filed on 1 April 2009. On 29 April 2009, the Crown Solicitor brought to the Tribunal's attention a recent case it contended was relevant to the application before the Tribunal. Mr Johnston commented on that case in a note to the Tribunal dated 30 April 2009. A. Should the subject documents be excluded from the proceedings? Application under the Privacy Act — 2008 8 In 2008, Mr Shirley initiated proceedings against TAFE under the Privacy Act (ADT file no. 083169.) In the initiating application lodged in those proceedings, Mr Shirley stated that he was seeking a review of TAFE's conduct, namely: '…Disclosing [his] personal information to another person or persons unknown, by the inaction of a failure to protect my personal information from being inappropriately accessed by someone else'. 9 While not entirely clear, it would appear that among other things the application related to the subject documents. 10 The parties reached agreement and by consent the application was withdrawn. Application under the Privacy Act — 2009 11 On 18 May 2009 Mr Shirley made a further application under the Privacy Act, this time in relation to conduct by the Attorney General's Department and the Crown Solicitor's Office (ADT file no 09128). In that application he stated that both organisations had contravened ss 10, 11, 12, 16, 17 and 18 of the Privacy Act by filing Ms Kennedy's statement and that this conduct 'constitutes clear breaches of the NSW Privacy statutes'. 12 That application is yet to be listed for determination. What the parties say 13 Mr Shirley asserts that by filing the subject documents TAFE and its legal representative have contravened the Privacy Act. He asserts that Ms Kennedy did not inform him that she intended to retain 'his personal information' which I understand to be a reference to the documents included at Annexure E of her statement. He contends that the documents should not be admitted as they were obtained in contravention of an Australian law: s 138 of the Evidence Act 1995. 14 TAFE argues that the filing of the subject documents does not enliven the provisions of the Privacy Act as they do not contain personal information, citing in support, Y v Director General, Department of Education & Training [2001] NSWADT 149 and EY v Department of Corrective Services (GD) [2009] NSWADTAP 25. Mr Shirley argues that EY is of no relevance as it concerned a report prepared by the convenor of a Department of Corrective Services' selection committee. He points out that the subject documents did not form part of the convenor's report and on that basis asserts that EY has no application to the issue before the Tribunal. Do the subject documents contain personal information? 15 'Personal information' is defined by s 4 of the Privacy Act as 'information or an opinion… about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion'. Excluded from this definition is 'information or an opinion about an individual's suitability for appointment or employment as a public sector official': s 4(3)(j). 16 The Privacy Act contains a series of Information Protection Principles (IPPs) that agencies are required to observe in their handling of personal information. It is not in issue that TAFE is a public sector agency and subject to those principles. Mr Shirley has not identified the provisions of the Privacy Act he relies on however it would appear that ss 17 and 18 may be relevant. 17 Limits on use of personal information A public sector agency that holds personal information must not use the information for a purpose other than that for which it was collected unless: (a) the individual to whom the information relates has consented to the use of the information for that other purpose, or (b) the other purpose for which the information is used is directly related to the purpose for which the information was collected, or (c) the use of the information for that other purpose is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual to whom the information relates or of another person. 18 Limits on disclosure of personal information (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless: (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it. 17 In EY the Appeal Panel considered the scope of s 4(3)(j) of the Privacy Act and the meaning of the phrase, 'information relating to suitability for employment'. The Appeal Panel noted that the test enunciated in Y, as set out below, has consistently been followed by the Tribunal. 33 The test, as I see it, must in each case be whether having regard to the content of the information in issue and the context in which it is found it can reasonably be said to be 'about an individual's suitability for appointment or employment'… … 36 As I see it, the protection against an over-reaching application of this exclusion is to be found in the word 'suitability'. The information in issue must be able to be shown to be information 'about … suitability.' It must contain within it language which indicates to an objective observer that the information canvasses the aptitude and competence of the employee with respect to their current or prospective employment (and can embrace such matters as co-operativeness, ability to work effectively as part of a team and interpersonal skills). If this approach is adopted, then it would be an unusual case where the exclusion would apply outside what I have described as the routine personnel context (that of recruitment, promotion, discipline and involuntary retirement).' 18 The information contained in the subject documents meets the definition of 'personal information' – it contains information about Mr Shirley who can readily be identified from that information. Accordingly unless established that it falls within the s 4(3)(j) exclusion, the subject documents will be subject to the relevant provisions of the Privacy Act. 19 While as Mr Shirley points out the documents do not constitute the whole or part of a convenor's report, this does not mean that EY is irrelevant. It is the test adopted in EY that TAFE relies upon. Applying that test, the question posed is: 'Having regard to the content of the subject documents and the context in which they are found, can they reasonably be said to be 'about Mr Shirley's suitability for appointment to head teacher'?' 20 Having regard to the context in which the subject documents were obtained (in the course of the selection of a head teacher) and their content (Mr Shirley's opinion about his suitability for that position and supporting information), it seems to me that they fall squarely within the scope of s 4(3)(j). It has not been explained on what basis a finding to the contrary could be made. 21 For those reasons I am satisfied that by the operation of s 4(3)(j), the subject documents do not contain 'personal information' as defined by the Privacy Act. It is therefore unnecessary to consider whether by filing that material, TAFE and/or the Crown Solicitor has contravened the provisions of the Privacy Act. Does s 138 of the Evidence Act apply? 22 In case I am wrong and the subject documents do contain personal information and their filing contravenes the Privacy Act, I will consider whether, as asserted by Mr Shirley, they can be excluded under s 138 of the Evidence Act. While the Tribunal is not bound by the rules of evidence nonetheless they provide useful guidance about the approach to be taken to the admissibly of evidence (see s 73(2) of the Administrative Decisions Tribunal Act 1997). 23 Section 138 relevantly provides: 138 Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. … (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. Note. The International Covenant on Civil and Political Rights is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth. 24 Section 138 gives a court discretion to exclude evidence that was obtained improperly or in contravention of an Australian law or in consequence of an impropriety or of a contravention of an Australian law. Accordingly the first issue to be determined is whether the subject documents fall within the class of documents described by s 138(1)(a) and/or (b). 25 Were the subject documents obtained improperly or in contravention of an Australian law? The subject documents were provided by Mr Shirley in answer to a request made by Ms Kennedy. The request was made in the course of the selection process for appointment of a person to the position of head teacher. 26 Section 8 of the Privacy Act provides: 8 Collection of personal information for lawful purposes (1) A public sector agency must not collect personal information unless: (a) the information is collected for a lawful purpose that is directly related to a function or activity of the agency, and (b) the collection of the information is reasonably necessary for that purpose. (2) A public sector agency must not collect personal information by any unlawful means. 27 There is no evidence before me to suggest that the information was collected for an unlawful purpose or did not directly relate to an activity of TAFE, namely the selection of personnel or that the collection of that information was not reasonably necessary for that purpose. 28 Mr Shirley's concern as I understand it, relates to the use made of the subject documents, in particular their retention, not the collection of them or the manner they were obtained. 29 Even if the documents are caught by the definition of 'personal information' I am not satisfied that they were obtained improperly or in contravention of an Australian law. 30 Were the subject documents obtained in consequence of an impropriety or of a contravention of an Australian law? For largely the same reasons as set out above there is nothing before me to suggest that the documents were obtained in consequence of an impropriety or of a contravention of an Australian law. 31 Conclusion In my view the subject documents do not fall within the scope of s 138 of the Evidence Act. Accordingly the application that they be excluded from these proceedings on that basis is refused. Should an adjournment be granted? 32 At the directions hearing on 28 May 2009 an application was made on behalf of Mr Shirley for the proceedings to be adjourned until after determination of the application, made under the Privacy Act, in respect of the conduct of the Attorney General's Department and the Office of the Crown Solicitor (ADT file no 09128). 33 Mr Shirley's initiating complaint made to the Anti-Discrimination Board was made in August 2007. The substantive proceedings have already been adjourned on one occasion. Section 73(5)(a) of the Administrative Decisions Tribunal Act instructs the Tribunal to 'act as quickly as possible'. In my view no useful purpose is served in awaiting the determination of that application. 34 Having regard to all the circumstances I have decided to refuse the application for an adjournment. Orders a The subject documents are not inadmissible on the grounds advanced by the applicant. b The adjournment application is refused.