Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Transport for NSW v Waters [2018] NSWCATAP 200 Hearing dates: 19 July 2018 Date of orders: 23 August 2018 Decision date: 23 August 2018 Jurisdiction: Appeal Panel Before: Hennessy LCM, Deputy President R Seiden SC, Principal Member Dr J Lucy, Senior Member Decision: (1) The appeal is allowed. (2) The decision under appeal is set aside. (3) The Appeal Panel will deal with the appeal by way of a new hearing. (4) By 14 September 2018 the appellant is to give to the Appeal Panel and the respondent written submissions, answering the questions set out at [63] of these reasons for decision. (5) By 5 October 2018 the respondent is to give to the Appeal Panel and the appellant written submissions answering the questions set out at [63] of these reasons for decision. (6) By 12 October 2018, the appellant is to give to the Appeal Panel and the respondent written submissions in reply. (7) By 12 October 2018, the parties are to provide written submissions about the proposed orders to dispense with a hearing and not to allow fresh or additional evidence. Catchwords: ADMINISTRATIVE LAW – access to government information – where appellant alleged that respondent had collected his travel data via a Gold Opal Card for an unlawful purpose –whether Tribunal had erred in failing to respond to a substantial argument articulated by the respondent – whether the Tribunal had erred in asking itself the wrong question Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Privacy and Personal Information Protection Act 1998 (NSW) Cases Cited: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Craig v State of South Australia (1995) 184 CLR 163 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 DWN042 v The Republic of Nauru (2017) 350 ALR 582; (2017) 92 ALJR 146 Escobar v Spindaleri (1986) 7 NSWLR 51 Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 Hammond v Ozzys Cheapest Cars Pty Ltd [2015] NSWCATAP 65 JD v Department of Health [2005] NSWADTAP 44 McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Totalisator Agency Board of NSW v Casey (1994) 54 IR 354 Waters v Transport for NSW [2018] NSWCATD 40 Category: Principal judgment Parties: Transport for New South Wales (Appellant) Nigel Waters (Respondent) Privacy Commissioner (NSW) (Interested Party) Representation: Counsel: A Mitchelmore and C Winnett (Appellant) P Batley (Respondent) Solicitors: Crown Solicitor's Office (Appellant) C McInnes (for the Privacy Commissioner NSW) (Interested Party) File Number(s): AP 18/12759 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Administrative and Equal Opportunity Division Citation: Waters v Transport for NSW [2018] NSWCATAD 40 Date of Decision: 15 February 2018 Before: J McAteer, Senior Member File Number(s): NCAT 2016/00378056, 1610285 REASONS FOR DECISION Background 1. These proceedings concern the application of s 8(1) of the Privacy and Personal Information Protection Act 1998 (NSW) (the Privacy Act) to the collection, by Transport for NSW (the appellant), of Mr Waters' (the respondent's) travel history data (Travel Data). The Travel Data concerns the respondent's travel movements when using his Gold Opal Card (Gold Card). 2. Under s 8(1) of the Privacy Act a public sector agency, such as the appellant, must not collect "personal information" unless it is collected for a lawful purpose that is directly related to a function or activity of that agency and the collection of the information is reasonably necessary for that purpose. At first instance, the Tribunal held that the collection of the respondent's Travel Data was in breach of s 8(1) of the Privacy Act: Waters v Transport for NSW [2018] NSWCATD 40 (the Decision). The appellant appeals from the Decision. The legislation 1. The definition of personal information is contained in s 4 of the Privacy Act. Sub-section 4(1) is the only part of the definition relevant to these proceedings. (1) In this Act, "personal information" means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion. 1. Section 8(1) is the Information Privacy Principle relating to the collection of personal information: 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. The First Instance Decision Nature of the information collected 1. Before proceeding further, it is necessary to say something about the nature of the information at the centre of the dispute and how it is collected. 2. A Gold Card is a concession card available to pensioners, seniors and some asylum seekers: at [88] of the Decision. 3. When applying for a Gold Card, a customer provides certain information in order for the appellant to verify the customer's details and to enable the card to be posted to the customer's address. This information includes the customer's: 1. full name; 2. NSW Senior's Entitlement Card Number; 3. date of birth; 4. home address; and 5. email address or phone number 6. (at [60] – [61] of the Decision). 1. From the evidence at first instance, as accepted by the Tribunal (at [76] of the Decision) it is apparent that this information and more is recorded in two databases within what the appellant styled the Customer Support System (at [79] of the Decision). 2. The Customer Database contains the information provided by the customer when applying for the Gold Card and may be displayed to the customer via the website and an app. This information may be managed (including deleted) by a customer: at [79] of the Decision. The Customer Database contains the Opal Card number: at [77] of the Decision. 3. In addition, there is an Entitlement Management Database, which contains the following information: 1. entitlement issuer identifier (an entity with authority to approve free or concession travel); 2. entitlement unique identifier; 3. entitlement holder details including their name date of birth and the delivery address for the card; 4. entitlement expiry date; and 5. Opal Card number. 1. Together, the Customer Data Base and the Entitlement Management Data Base contain what we will refer to as the Registration Data. We note that, on the appeal, the parties agree that the Registration Data is personal information. Nevertheless, there is no suggestion that the collection of Registration Data, itself, is contrary to s 8(1) of the Privacy Act. 2. As further disclosed by the evidence at first instance and accepted by the Tribunal (at [76] of the Decision), the Travel Data is collected when a customer uses an Opal Card. It is collected when the Opal Card, which contains a microchip and is referred to as a "smart card," is processed by a smart card reader. Smart card readers are on tap on/tap off points at various locations including at a barrier gate or pole. The Travel Data includes the following information: 1. Opal Card number; 2. date/time of transaction; 3. location; 4. mode of transport; 5. type of Opal Card used; 6. journey cost; and 7. transaction sequence number. 1. This information is contained in the Transaction Database within what is styled by the appellant as the Central Core System. The Central Core System also contains a further data base known as the Card Database which contains information about the state of the particular Opal Card, including the following: 1. Opal Card number; 2. card balance; 3. card status; 4. top up status; and 5. auto load settings. 1. Together, the Card Database and the Transaction Database contain the Travel Data. 2. The databases within the Central Core System are separate and distinct from the databases that contain the Registration Data: at [79] of the Decision. However, and of significance to the appeal, it is apparent that it would be possible to identify a customer's identity from his or her Travel Data, by noting the Opal Card number associated with the Travel Data and then searching within the databases that contain the Registration Data for that same number. As is apparent from the lists of information referred to above, the necessary link between the Travel Data and the Registration Data is created by the Opal Card number which is contained in both the Central Core System and the Customer Support System. 3. Further, in relation to Gold Cards, an applicant is required to register their card: at [5] of the Decision. The Tribunal accepted the appellant's evidence that whilst this registration process is mandatory in respect of Gold Cards, the registration requirement is not mandatory in respect of other types of card, including normal (full-fare) cards and the student concession card known as a Green Card: at [106] of the Decision. 4. An implicit consequence of the mandatory requirement for registration of the Gold Card is that the customer may not delete the information from his or her Customer Database. Whilst the Customer Database may provide the link between the Registration Data and the Travel Data through the Opal Card number, the Entitlement Database, in any event, contains the Opal Card number. Accordingly, it would not be an answer to the respondent's grievance to remove the registration requirement. There would nonetheless be a link between the Travel Data and the Registration Data in the case of Gold Card holders, such that the identity of the customer could be gleaned from his or her Travel Data. The first instance decision 1. In order to determine whether there was a breach of s 8(1) of the Privacy Act, it was necessary for the Tribunal to answer two questions: first, was the Travel Data personal information; and if so, was the Travel Data collected for a permitted purpose. 2. Before turning to the Tribunal's findings, it is relevant to emphasise that at first instance (and before the Appeal Panel) the respondent did not cavil with the appellant's collection of the personal information consisting of the Registration Data. The respondent accepted at first instance (and before the Appeal Panel) that the collection of his personal information by way of the Registration Data (including the Opal Card number) was for the lawful purpose of establishing and verifying his ongoing entitlement to the Gold Card: at [128] of the Decision. 3. At first instance, whilst the appellant originally conceded that the collection of Travel Data was personal information, this position changed and it was ultimately contended by the appellant that the collection of Travel Data was not the collection of personal information: see at [42] of the Decision. The Tribunal, however, held in answer to the first issue, that the Travel Data was indeed personal information, as contemplated by the Privacy Act: at [84](1) of the Decision. This was for the reason, in effect, that the identity of the person to whom the Travel Data belongs might be determined by the linkage created between the Travel Data and the Registration Data through the Opal Card number. 4. The dispute was about the collection of the Travel Data, not about the collection of the Registration Data. This fact complicated the determination of the second issue (whether collection was for a permitted purpose). The Travel Data was only rendered personal information by the collection of the Registration Data and the linking of the Registration Data to the Travel Data by the Opal Card number. This resulted in consideration by the Tribunal of both the purpose of the collection of the Registration Data and the purpose of the collection of the Travel Data. 5. Ultimately, having heard evidence from the appellant's witnesses as to the purpose of the collection of all the information, the Tribunal held that "there seems little basis for the collection of the travel information for the stated purpose of enforcement/eligibility for the entitlement to the concession card": at [137] of the Decision. 6. Further, the Tribunal relevantly stated at [141]–[142] and [145] of the Decision as follows: "[141] The respondent has never strongly submitted that it desires the travel history of the Gold Opal card holders, merely it would appear that this is a necessary attendant function intertwined with the technology and the system which the respondent enables and desires in order to monitor the eligibility of these cards. [142] In some ways the movement history function (linked to the user / applicant) as I have found, based on the arguments put forth in the proceedings is an unintended or unnecessary functionality that the respondent has no view about. Whilst the respondent clearly argued that travel history is useful to law enforcement situations (where authorised), significantly much of that travel history involves unregistered cards which cannot (via the Opal technology alone) be matched to any individuals. … [145] It is only the collection being extended to travel history that in the applicant's view fails the 'reasonably necessary' test of s8 (1)(b). It may have been open to ventilate arguments concerning 'top up' amounts, and 'top up' locations (which provide some evidence as the geographical location of the card). Those arguments have not been explicitly advanced by the applicant, but are captured in the 'objection to other uses' argument of the applicant." 1. Ultimately, the Tribunal concluded that there was a breach of s 8(1) of the Privacy Act: at [171]–[172] of the Decision. The Appeal Jurisdiction 1. The Decision is an internally appealable decision from the Administrative and Equal Opportunity Division of the Tribunal within the ambit of ss 32(1)(a) and 80(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). Accordingly, the appellant may appeal as of right on any question of law: s 80(2)(b) of the NCAT Act. 2. The appellant's Amended Notice of Appeal states the grounds of appeal as follows: "(1) The Tribunal failed to respond to a substantial argument clearly articulated on behalf of the Respondent below, namely, that a lawful purpose for the Respondent collecting travel history information in relation to Opal Gold Cards is the provision of a stored value travel card that operates as a concession ticket for transport services at a reduced rate for eligible customers. The Tribunal thereby: (a) constructively failed to exercise its jurisdiction; and/or (b) breached the requirements of procedural fairness. (2) The Tribunal applied the wrong test or asked itself the wrong question pursuant to s 8(1)(b) of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) in formulating the test for contravention of s 8(1)(b) by reference to whether collection is for a purpose that is not reasonably necessary, rather than whether collection is reasonably necessary for the lawful purpose identified for the purposes of s 8(1)(a) of the PPIP Act." 1. The respondent accepts that these grounds raise questions of law, but takes issue with the appellant's approach. The respondent contends that the appellant impermissibly relies on a factual foundation not established at first instance and invites the Appeal Panel to make findings in disposition of the appeal. 2. The respondent relies on the following statement of the Court of Appeal in Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22] (White J): "As the notice of appeal to the Appeal Panel purported to be an appeal on questions of law, it was necessary for the notice of appeal to identify precisely the particular question or questions of law. It was those questions, if there were any, that should have formed the subject matter of the appeal to the Appeal Panel unless leave were sought and obtained for a merits review (TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178; 19 ATR 1067 at 1070; B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; (2008) 74 NSWLR 481; Colby Corporation Pty Ltd v Commissioner of Taxation [2008] FCAFC 10; (2008) 165 FCR 133 at [13]; Osland v Secretary to the Department of Justice (No. 2)[2010] HCA 24; (2010) 241 CLR 320 at 333, [21]; Hoe v Manningham City Council [2011] VSC 37 at [4]-[5]; Smalley v Secretary, Department of Health and Ageing [2011] FCA 302 at [10] ff)." 1. The Appeal Panel is satisfied that the grounds of appeal raise questions of law. The question of whether or not the Tribunal has erred in failing to attend to a substantial argument of the appellant and thereby failed to exercise the jurisdiction or failed to accord procedural fairness may be resolved by reference to the Decision itself, as well as by reference to the submissions before the Tribunal and the Transcript of Hearing. The question of whether or not the Tribunal erred in asking itself the wrong question may be answered by reference solely to the Decision. In each case, there is no requirement to delve impermissibly into facts in order to answer the particular questions of law. Ground One 1. The appellants contended that the Tribunal erred in failing to respond to the argument, put at first instance, "that a lawful purpose of the collection of travel history information was in order for the provisions of a stored value travel card that operates as a concession ticket for transport at a reduced rate for eligible customers": appellant submissions at [3.1] (the Ground 1 Argument). 2. Failure to attend to a substantial argument of a party is a denial of natural justice and an error of law: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] (Gummow and Callinan JJ); DWN042 v The Republic of Nauru (2017) 350 ALR 582; (2017) 92 ALJR 146 at [17] (Keane, Nettle and Edelman JJ); Escobar v Spindaleri (1986) 7 NSWLR 51 at 59 (Glass JA); Totalisator Agency Board of NSW v Casey (1994) 54 IR 354 at 359 (Kirby P). 3. There was ultimately no dispute that the failure of the Tribunal to attend to a substantial argument put by a party would be a denial of natural justice and thus an error of law. 4. The threshold question here is whether the Ground 1 Argument was indeed put forward to the Tribunal. Having regard to the Decision, the Appeal Panel is satisfied that if such an argument was indeed put forward, it was not addressed by the Tribunal. We are not however, in answering this threshold question, concerned with whether or not the purpose identified in the Ground 1 Argument is in fact a permitted purpose, as contemplated by s 8(1) of the Privacy Act. 5. In written and oral submissions, the appellant further explained the purpose apprehended by the Ground 1 Argument. For instance, it was said (at [33] of the appellant's submissions) that the Travel Data was necessary in order to calculate the correct fare. In order to make good that submission, the appellant drew our attention to the Opal Privacy Policy, effective from 21 April 2016 (which was annexure A to the submissions of the appellant at first instance, dated 18 August 2018). Relevantly, that Policy provides at clause 4.2.3 as follows: "4.2.3 Information collected when the Opal card is used We collect information about journeys made with an Opal card in order to account for fares charged, to make payments to transport operators and to manage the Opal Ticketing System. The information collected with respect to each Opal card is: (a) the Opal card number of the Opal card that is used; (b) the time and date of tap on and off of the Opal card; (c) start and end location; (d) route identifiers; (e) journey transfers (if any); (f) the discount (if any); and (g) the fare charged on the Opal card. Further, the information collected when a customer adds value, or 'tops up' an Opal card is: (h) the location or channel through which value was added to the Opal card; (i) the amount of the transaction; and (j) the date and time of the transaction." 1. Further, the Appeal Panel was referred to a standard letter provided to Gold Card customers, outlining the benefits of the card (this was Annexure B to the submissions of the appellant at first instance, dated 18 August 2018). This document outlines the mechanism by which Gold Cards are "charged" for travel. As is apparent from the document, this is not a straightforward mechanism. Whilst the maximum charge in a single day is $2.50 (save in respect of travel to or from Sydney Airport Station, which is privately owned), the ultimate charge may be less than $2.50 per day. The total fare depends on matters such as the number of trips per day, whether the customer has used a variety of travel modes, whether they have broken their journey by more than 60 minutes and the extent of travel in a week. 2. Ms Mitchelmore, who appeared with Ms Winnett, for the appellant, explained to the Appeal Panel that the Gold Card, which is a "smart card" stores some of this information on the card itself. But the card can only contain a limited amount of data and it is necessary to communicate with the Central Core System in order for the correct fare to be calculated. Also, the information is necessary if a customer disputes a charge or a private operator is entitled to a refund. 3. The respondent relied upon Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] where Gummow and Callinan JJ said: "To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice." 1. The respondent contended that the Ground 1 Argument "was neither substantial nor clearly articulated; it did not rely on established facts": at [19] of the respondent's submissions. The respondent contended that the submission at first instance was that the purpose for collecting the information was to monitor eligibility of Gold Card customers and that the passages now highlighted by the appellants, for example in their written submissions in reply at paragraphs [14] and [15], should be read with that in mind. If those passages are read in that way, it is apparent that the appellants were simply expressing that purpose in different language. For the following reasons, we accept the respondent's contention. 2. Irrespective of the existence of evidence at first instance that may be said to substantiate the Ground 1 Argument, the Appeal Panel is not satisfied that the Ground 1 Argument was put forward at first instance, in the manner now contended. That argument was not put forward in written submissions at first instance. We accept that the parties modified their written submissions as the proceedings progressed. For instance, originally, the question of whether the Travel Data was personal information was accepted, but later became a live contest. Nevertheless, the Appeal Panel was not directed to anything in the Transcript of Hearing that persuades us that the appellant expressed the permitted purpose in that way. 3. We accept that in the written submissions at first instance, the statutory objectives and functions of the appellant were identified. Those functions included its ticketing function. At [34] of the written submissions at first instance the appellant also mentioned that: 1. the "Opal card contains specific features, including a smart chip which stores a dollar value and limited travel history 'that enables the correct fare to be charged for the journey by determining the tap on and tap off location'"; and 2. "critically … the collection of [Mr Water's] personal information for registration as an Opal Gold card user is 'reasonably necessary' for the lawful purpose of providing transporting services at a reduced rate to eligible customers". 1. The focus of those submissions was on the collection of data for eligibility requirements including ongoing eligibility, to identify misuse of Gold Cards and if necessary to cancel a Gold Card. The focus was not on "the provision of a stored value travel card that operates as a concession ticket for transport at a reduced rate for eligible customers". 2. We find that this purpose was not put forward and, accordingly, the Tribunal did not err by failing to respond to it. Ground 1 fails. Ground Two 1. The appellant contends that the Tribunal has constructively failed to exercise its jurisdiction by asking itself the wrong question. There could be no dispute that if this ground is made out there has been an error of law. In Craig v State of South Australia (1995) 184 CLR 163 at 179, the High Court stated: "If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it." 1. The appellant contends that the Tribunal failed to attend to the statutory test of identifying the personal information (in this case the Travel Data) and then asking whether that information was being collected for a permitted purpose as defined in s 8(1) of the Privacy Act. Instead, the appellant submits, the Tribunal identified two purposes for collecting personal information: first, what the appellant described as the Entitlement Purpose (verification or entitlement and enforcement); and secondly, what was described as the Extended Purpose (applicant's travel movements). The Tribunal then asked itself if the Extended Purpose was reasonably necessary for the achievement of the Entitlement Purpose. This, so the appellant contended, was most clearly seen at [172] of the Decision, where the Tribunal said: "I have made a number of preliminary and threshold findings in these proceedings. Those findings are set out at the relevant place that they arise in the reasoning and evidence. Having considered all of the arguments and evidence and submissions of both parties, I find that the respondent has collected the personal information of the applicant (through the travel, billing, location) history for a purpose (by the nature of that collection/information) that is not necessary (or reasonably necessary) for ensuring entitlement and enforcement of eligibility for the Gold Seniors Opal card." 1. The respondent contends that the Tribunal correctly stated and applied the statutory test as is apparent from paragraphs [135] – [147] of the Decision. Insofar as there may be some loose language in paragraph [172] of the Decision, the Appeal Panel should not be concerned: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ) quoted with approval in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh, Gummow JJ). 2. The Appeal Panel is conscious that it should not approach the task of construing the Decision with any overzealous technicality or with an eye to finding error: Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh, Gummow JJ), citing McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616 (von Doussa J). 3. The Tribunal concluded that the Travel Data was only made personal information because of the link via the Opal Card number to the Registration Data. Rather than focus on the purpose of the collection of the Travel Data alone, the Tribunal, conscious no doubt of the link created by the Opal Card number, focused on the purpose of the collection of the Registration Data. At [62] of the Decision, the Tribunal set out its approach: "It is difficult to see how, on the applicant's construction of his grievance/complaint, the information that he objects to the collection of, is anything other than his personal information. The tracking information concerns a card that is registered to the applicant. It appears to me that the arguments concerning tracking and movement surveillance are easily understood. Whether those arguments are legally founded remains to be seen. However the applicant's concerns appear to be based at a far more primary level, in that he objects to the collection of his personal information for a future use/additional purpose (travel movements). The objection is that in his view, such a collection is not reasonably necessary for the purpose of managing ongoing entitlement." 1. When the Decision is read as a whole, with particular reference to [128], [130], [133], [137], [140]–[147], [167] and [171]–[172], it is apparent that the Tribunal identified the purpose of collecting the Registration Data but failed to identify the purpose of collecting the Travel Data. The legal error was asking itself the wrong question. The Tribunal appears to have been concerned with the fact that the Registration Data, once linked to the Travel Data, turned the Travel Data into personal information. The Tribunal considered that the appellant had contended that the purpose for the link was to monitor eligibility of the customer to the Gold Card and therefore asked itself, in effect, whether it was necessary for the Registration Data to be linked to the Travel Data for that purpose. New hearing 1. During the hearing of the appeal, both parties indicated that if error was established, it would be appropriate for the Appeal Panel to remit the matter to the Tribunal for reconsideration. However, the Appeal Panel considers that it would be in the interests of justice for it to finally resolve the issues between the parties and to that end considers that the grounds of appeal warrant a new hearing: s 80(3) of the NCAT Act; Hammond v Ozzys Cheapest Cars Pty Ltd [2015] NSWCATAP 65 (Wright J, President, M Harrowell Principal Member and J Redfern Principal Member). 2. The Appeal Panel has determined that it is necessary to hear further from the parties as to the next steps and as to what evidence the Appeal Panel may have regard, in order to finally determine the appeal. 3. Before making any orders in that regard, we express the following preliminary views. 4. Under any application concerning s 8(1) of the Privacy Act, it is first necessary to identify the personal information. Here, it is deceptively easy to say that it is the Travel Data of Mr Waters, that is made personal information because of the link through the Opal Card number between the Central Core System and the Customer Support System. However, saying it that way glosses over important issues. What precisely is the personal information and when does the relevant collection occur? 5. A difficulty arises because a case might be put that the collection of the Travel Data per se (i.e., without the link between the Central Core System and the Customer Support System) is reasonably necessary for a permitted purpose of calculating and charging the customer with the correct fare. In particular, it might be accepted that it was reasonably necessary to capture or collect the Opal Card number as part of the Travel Data for this purpose. Further, the respondent accepts that the Registration Data (including the Opal Card number) is not collected in breach of s 8(1) of the Privacy Act. Accordingly, a real issue arises as to what personal information is being collected and when? 6. During oral argument, the respondent framed the ultimate issue as whether it was reasonably necessary for the appellant to collect the Travel Data as personal information. However, this does not necessarily address the real issue because it focuses on how it is collected or the consequences of collection and not why it is collected. 7. We understand that the respondent accepted that the collection of the Travel Data of an Opal Card customer, other than a Gold Card customer, is not a breach of s 8(1). We also understand that the same Travel Data is collected from the Gold Card customer as is collected from any another customer for the same purposes. Those propositions give rise to the question of whether the link to the earlier collected Registration Data changes the nature of the information collected. If not, could the link cause a breach of s 8(1) of the Privacy Act? 8. There is yet another issue. 9. There was a difference between the parties as to the factual issue of the appellant's purpose of collecting the respondent's Travel Data. In its submissions on appeal, the appellant framed this purpose as being "the provision of a stored value travel card that operates as a concession ticket for transport services at a reduced rate for eligible customers". The respondent relied upon what he submitted was the Tribunal's finding that the purpose of collection was "verifying eligibility and to determine the ongoing eligibility of the applicant": the Decision at [144]. This was not a "finding" but rather a reference by the Tribunal to the appellant's submissions as to the purpose of collecting personal information at the time of application and registration. 10. The concept of "purpose" is central to the operation of the information protection principles including the collection principle in s 8. As the Appeal Panel of the former Administrative Decisions Tribunal said in JD v Department of Health [2005] NSWADTAP 44 at [45], "An overarching consideration in the scheme of this legislation is 'purpose'. 'Purpose limitation' and 'purpose specification' are key privacy protection concepts." The purpose for which an agency collects personal information is relevant for: 1. s 8, which requires collection to be reasonably necessary for that purpose; 2. s 11, which requires an agency to take reasonable steps to ensure that personal information collected is relevant to the collection purpose; 3. s 15(1), which requires an agency, upon request, to amend personal information to ensure that it is relevant and up-to-date, having regard to the collection purpose; 4. s 17, which prohibits an agency from using personal information for a purpose other than the collection purpose, unless exceptions apply; and 5. s 18, which prohibits an agency from disclosing personal information unless the disclosure is directly related to the collection purpose or another exception applies. 1. One of the concerns of s 8 and the other information protection principles is to create transparency when agencies deal with personal information. In those circumstances, it would be anomalous if the agency were permitted to determine or frame the purpose of collection at the time of an alleged breach. Section 10 provides that, when an agency collects personal information from an individual, it is required to take reasonable steps to ensure that the individual is made aware that the information is being collected and the purpose of collection. Section 13 requires an agency to take reasonable steps to enable any person to ascertain whether it holds their personal information and, if so, the main purposes for which the information is used. Section 33 requires agencies to have a privacy management plan which includes provisions relating to the devising of policies and practices to ensure compliance by the agency with the requirements of the Privacy Act. 2. We consider that, taken together, these provisions evince a legislative intention that the individual should be made aware, at or around the time of collection, of the purpose for which his or her information is being collected, and should be able to ascertain the purpose for which it will be used. There must therefore be a presumption that the agency's stated purposes for collection and use of personal information, provided in accordance with ss 10 and 13, are in fact such purposes. If an agency wishes to depart from these purposes when it is alleged that the agency has breached an information protection principle, and say that the information was in fact collected for a purpose which has not been notified to the individual, then the agency should be required to explain this omission. 3. Ms Mitchelmore took the Appeal Panel to cl 4.2.3 of the appellant's Opal Privacy Policy, which is set out above. This states that, "We collect information about journeys made with an Opal card in order to account for fares charged, to make payments to transport operators and to manage the Opal Ticketing System". This is the appellant's stated purpose for collecting Travel Data. It appears accurately to reflect the appellant's purpose of collection, having regard to the evidence before the Appeal Panel. It is doubtful that it is necessary, or helpful, for the agency to reframe this purpose in response to an alleged breach of s 8. 4. These are matters upon which the Appeal Panel will require further submissions. 5. In order to deal with the appeal by way of a new hearing, the Appeal Panel must answer the following questions: 1. What is the personal information the subject of the live dispute? 2. When is that personal information collected? 3. What is the purpose of its collection? 4. Is that purpose lawful and directly related to a function or activity of the appellant? 5. Is the collection of that personal information reasonably necessary for the identified purpose? 6. (If different to (1)) What is the purpose of the collection of the Travel Data (acknowledging that it is personal information)? 7. Is that purpose a lawful purpose that is directly related to a function or activity of the appellant? 8. Is the collection of the Travel Data reasonably necessary for the purpose identified in answer to the previous question? 1. It is our preliminary view that these issues should be determined on the basis of the evidence before the Tribunal at first instance. There should be no need for the parties to adduce fresh or additional evidence. We have also formed the preliminary view that these issues can be determined 'on the papers,' that is to say, without a further hearing: NCAT Act, s 50(1). A final decision on those questions will not be made until we have taken into account any submissions from the parties on those issues: NCAT Act, s 50(3). We make the following orders and directions: 1. The appeal is allowed. 2. The decision under appeal is set aside. 3. The Appeal Panel will deal with the appeal by way of a new hearing. 4. By 14 September 2018 the appellant is to give to the Appeal Panel and the respondent written submissions, answering the questions set out at [63] of these reasons for decision. 5. By 5 October 2018 the respondent is to give to the Appeal Panel and the appellant written submissions answering the questions set out at [63] of these reasons for decision. 6. By 12 October 2018, the appellant is to give to the Appeal Panel and the respondent written submissions in reply. 7. By 12 October 2018, the parties are to provide written submissions about the proposed orders to dispense with a hearing and not to allow fresh or additional evidence. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 04 September 2018 - Paragraph numbering corrected to match cross-reference in Orders 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 September 2018