Y v Director General, Department of Education & Training [2001] NSWADT 149 (12 September 2001)

Last Updated: 3 October 2001

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Y -v- Director General, Department of Education & Training [2001] NSWADT 149

PARTIES: APPLICANT

Y

RESPONDENT

Director General, Department of Education & Training

FILE NUMBERS: 013127

HEARING DATES: 31/07/2001

SUBMISSIONS CLOSED: 09/08/2001

DECISION DATE: 12/09/2001

BEFORE: O'Connor K - DCJ (President)

LEGISLATION CITED: Privacy & Personal Information Protection Act 1998

CASES CITED:

APPLICATION: Jurisdiction

Privacy - contravention of information protection principle

Privacy & Personal Information Protection Act -contravention of information protection principle

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

In person

RESPONDENT REPRESENTATIVE: RESPONDENT

J McDonnell, solicitor

OFFICE OF THE PRIVACY COMMISSIONER

J Gaudin

ORDERS: Application dismissed.

Reasons for Decision:

1 The applicant has lodged an application for review of the conduct of a public sector agency (the respondent) pursuant to section 55 of the Privacy and Personal Information Protection Act 1998 (the Privacy Act). The respondent has challenged the application on the basis that the Tribunal lacks jurisdiction.

2 There are three objections. The most fundamental objection is that the type of personal information put in issue by the application is not covered by the Privacy Act; and therefore the application is incompetent. The second objection is that the conduct to which the application is addressed occurred prior to the commencement of the Act. The commencement date was 1 July 2000, with the Privacy Commissioner having power to defer the commencement date in relation to particular provisions in relation to specified agencies. The third objection is that the application is invalid because the pre-condition that there be a valid prior application for internal review has not been satisfied.

3 The applicant is a part-time senior assistant (variously described in the material as a senior clerical assistant or a senior school assistant) employed by the respondent at a country primary school with, as at June 2000, 49 students. She has worked there for many years. In June 1999 the respondent initiated a wide ranging management review of the operation of the school. There had been a history of principals coming to the school and seeking to leave after short periods, and often being prepared to accept demotions in order to do so. The management review team was given as its terms of reference, `The circumstances relating to staff leaving [name] Public School after short periods of service', and required to report to the Assistant Director General (Primary Education).

4 The following appears from the documents provided by way of attachments to the submissions of both parties.

5 On 31 May 2000 the review team sought answers from the applicant to ten questions containing allegations of a negative character as to her conduct in connection with the running of the school. There are handwritten notes of her responses. In several instances she denied the allegations. On some matters she is recorded as asking for details. The notes indicate that she had obtained advice from the Public Service Association as to how she should respond to matters put to her. The notes are consistent with statements made orally by the applicant and in her submissions during these proceedings. The notes record the following reaction at interview by the appellant: `advised by PSA not to participate - no guidelines set down. Advised not to participate. Need to know details of all allegations.'

6 On 19 June 2000 the applicant was present at a meeting convened by the review team with the principal and relevant staff. The review team gave a summary of the findings of the review set out as 10 items. There was a finding that past principals believed that the (full-time) assistant teacher or the applicant fuelled criticism of their performance.

7 The findings were followed by 7 recommendations, one of which was specific to the applicant, that the applicant be transferred to another school. The review team also recommended more generally that there be further investigation into a number of specific matters identified in the course of the review that might constitute breaches of discipline standards found in relevant legislation and codes of conduct affecting teachers.

8 The report was finalised in June 2000. A condensed version of the report was released to the school community under cover of a notice from the Assistant Director General (Primary Education) on 1 August 2000.

9 In the condensed report, there were statements negative to the applicant. The report referred to the applicant as being non-responsive to questions put to her on 31 May 2000. The report also referred to an event that occurred at the school on 16 June 2000 relating to the incorporation of material into the school newsletter contrary, it was said, to the wishes of the principal. There are 14 `conclusions'. She is referred to specifically in conclusion no 2. It is said that she has often supported the assistant teacher at the school in active and passive actions that have contributed to the significant breakdown in interpersonal relations in the school.

10 Reading the material as a whole, it is plain that the applicant is perceived to belong to the group in the school community supportive of the assistant teacher and which wishes to see him appointed principal.

11 This picture forms the background to the first two of the seven published `recommendations'. No 1 is that the assistant teacher be transferred. No 2 is that the applicant be transferred. The remaining five recommendations propose general strategies for improving various operational aspects of the school community. They are not person-specific.

12 There was a story in a major newspaper on 4 August 2000 referring to the inquiry into the school, its outcome and referring by name to the applicant.

13 On 10 August 2000 the Public Service Association on her behalf made representations to the agency referring specifically to four texts contained in the report as released on 1 August 2000. The first text refers to the applicant's non-responsiveness to the allegations put to her on 31 May 2000. The second text refers to the finding by the review relating to her alleged improper attachment of notes of a meeting to the newsletter distributed on 16 June 2000 to students and parents. The third text is the conclusion relating to a significant breakdown in interpersonal relations in the school to which it is said the applicant has contributed. The fourth text is the recommendation that she be transferred.

14 The letter concludes by requesting immediate amendment of the offending passages `to accurately reflect [the applicant's] involvement in the issues dealt with by the report' and then requests immediate withdrawal of the threat to transfer her. The letter asks for a response within 7 days `or the Association will have no alternative but to seek the assistance of the Industrial Commission to resolve the issues.'

15 In various submissions the applicant has submitted that this letter constituted an invocation of rights conferred by the Privacy Act. While there is a request for amendment, it is one presented by a union on behalf of a member, referring ultimately to the possibility of taking the matter to the industrial tribunal. The agency was entitled, I consider, not to regard it as an application for amendment, or internal review, for the purposes of the Privacy Act.

16 In reaching this view in this case, I should make it clear that I do not see it as essential that there be express reference in correspondence with agencies to the statute under which application is made. There will be cases where it is apparent from the surrounding context, such as oral interactions between the applicant and the agency, or the internal contents of the letter, that a statutory right is being invoked. But in cases where an applicant proceeds through an informed agent (such as a legal practitioner or a union) it is reasonable for an agency ordinarily to expect to find a direct reference to any statutory right that is being invoked.

17 As noted the version of the report released on 1 August 2000 was a condensed version clearly designed for public circulation and consequently did not contain any amendments or deletions.

18 On 3 October 2000, the applicant received from the respondent a copy of the full original report of the review team, with a number of deletions (signified by black pen obliterations) relating to information that the agency regarded as not appropriate for release (see attachment 5, Bundle B).

19 As I understood the parties at hearing, there has been a further, fuller release since then, and the applicant is now dealing with her concerns in relation to the remaining deletions by way of proceedings under the Freedom of Information Act 1989. She no longer presses any claims in this regard by way of the Privacy Act, in particular by seeking to invoke s 15, an Information Protection Principle (IPP) relating to amendment and alteration of personal information held by a public sector agency.

20 Not having obtained satisfaction following the Public Service Association's letter of 10 August 2000, the applicant communicated directly with the agency on 23 February 2001 by letter that was co-signed with the assistant teacher affected by the report. The letter referred to the Privacy Act.

21 The material parts of the letter were:

`We request an internal review of the above Review and Report. An edited version of the Report was presented to our community by Mr John Sutton [the Assistant Director General] at a public meeting at the school on August 1st 2000. At that meeting, to our great distress and embarrassment, Mr Sutton read out the Report which contains false, misleading and defamatory statements about both applicants. We responded immediately to the Department and through our unions, requesting that our concerns be given as a matter of urgency to Mr Sutton and that the false statements be removed from the Report.

On August 23rd it became known to us that a second version of the Report had been published and distributed to a restricted audience. We immediately requested a copy of the second Report in its entirety and some time later received a heavily edited version of that Report. This Report contains false, misleading, unsubstantiated and defamatory personal information about both applicants and family members of one applicant and recommends further investigation into those allegations. We have not been contacted by the Department or our unions regarding these investigations and the report stands unchallenged.

We believe that the public disclosure of these allegations breaches sections of the Privacy and Personal Information Protection Act 1998, including:

Section 16

16 Agency must check accuracy of personal information before use.

A public sector agency that holds personal information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading.

Under Section 14 of the Act, it is our right to have access to the personal information which was collected about us and family members during and after the abovementioned Review and subsequent investigations. We request access to those documents.

Under Section 15 of the Act we have the right to the alteration of personal information published in the abovementioned two Reports.

This request has been delayed pending responses from the Department and/or our unions which, to date, have not been received.

Your advice in this matter is appreciated.'

22 She received the following reply by letter dated 20 March 2001 from the Director of Administrative Services of the respondent:

`I refer to your letter of 23 February 2001 regarding your request for an internal review of the [name] Public School Management Review and Report.

In response to your requests under section 14 and 15 of the Privacy and Personal Information Protection Act 1998 (the Privacy Act), I quote from Section 5 of the same:

5 Freedom of Information Act 1989 not affected

(1) Nothing in this Act affects the operation of the Freedom of Information Act 1989.

(2) In particular, this Act does not operate:

(a) to modify any exemption under the Freedom of Information Act 1989, or

(b) to lessen any obligations under that Act in respect of a public sector agency.

Since you have requested the same material under the Freedom of Information Act (the FOI Act), I advise that you await the outcome of your FOI request which is being processed at this time. The outcome of your application under Section 14 of the Privacy Act will be determined by the outcome of your application under the FOI Act. Should you be granted access to documents under the FOI Act, you may then make further application under Section 15 of the Privacy Act in relation to the alteration of any personal information.

Section 53(3)(d) of the Privacy Act states that an internal review must be lodged at an office of the public sector agency (the Department) within six months (or such later date as the agency may allow) from the time the applicant first became aware of the conduct that is the subject of the application. Your application was lodged outside that time. In considering an extension of this six month time period, the Department notes, after conducting an evaluation of information arising from the Management Review, that there was no evidence that the Management Review Report was not relevant, complete, accurate, up-to-date and not misleading. Consequently, your application for an internal review is declined.

Should you wish to clarify any aspects of this matter please contact Robin Prowse, Privacy Contact Officer on telephone [phone] or by facsimile on 9244 5484.'

23 As previously noted, that part of the letter that raises issues as to access and amendment is no longer being pressed in these proceedings. The Tribunal was informed that she has now had released to her an almost complete version of the report than that released on 23 October 2000.

Application for Review

24 The applicant lodged her application for review on 21 May 2001. After a planning meeting held on 5 June 2001, directions were made for written submissions and the matter was set down for hearing on the jurisdictional questions on 31 July 2001. Detailed written submissions were received from both parties.

25 The Tribunal notified the Privacy Commissioner of the application, as required by s 55(6) of the Privacy Act. Sub-section (7) of s 55 provides that: `The Privacy Commissioner has the right to appear and be heard in any proceedings before the Tribunal in relation to review under this section.' The Privacy Commissioner exercised his right of appearance. Dr Gaudin, a staff member, attended and made submissions.

Personal Information - Scope

26 I will deal with the most fundamental objection first - whether the personal information in issue is covered by the Act.

27 For this purpose I regard the personal information in issue as the four texts referred to in the letter from the Public Service Association dated 10 August 2000. To reiterate. The first text refers to the applicant's non-responsiveness to the allegations put to her. The second text contains a finding by the review relating to her alleged improper attachment of notes of a meeting to a newsletter distributed to students and parents. The third text is the conclusion relating to a significant breakdown in interpersonal relations in the school to which it is said the applicant has contributed. The fourth text is the recommendation that she be transferred.

28 There is no dispute that the information in issue falls within the general definition of personal information (s 4(1)). The question is whether it falls within exclusion (j) from the definition (s 4(3)):

`Personal information does not include any of the following: ... (j)information or an opinion about an individual's suitability for appointment or employment as a public sector official.'

The applicant falls within the definition of a `public sector official' being a person who is employed by a public sector agency (definition, s 3).

29 The Privacy Commissioner submitted through Dr Gaudin that a narrow interpretation should be adopted by the Tribunal in relation to the meaning of this exclusion. He submitted that the exclusion had the potential to sweep into its net all information collected about individuals who are public servants. He submitted that it was possible that any information collected about a public servant could bear on the individual's suitability for appointment or employment. It was the Privacy Commissioner's view that the exclusion should be construed as referring only to information that was collected in the course of a selection process or a formal disciplinary process.

30 On behalf of the agency, Mr McDonnell of the Crown Solicitor's office submitted that the interpretation to be adopted fell between the positions suggested by Dr Gaudin. The terms of the exclusion were to be applied objectively having regard to the nature of the information in issue. It was not necessary that the information be generated in a formal employment-related process such as selection or discipline. It was conceivable that the information might be generated in some other kind of process. That there was a degree of flexibility was reflected in the use of the word `about' - provided the information was `about' suitability for appointment or employment as a public sector official that was sufficient to bring it within the net.

31 The applicant's submissions were similar to those of the Privacy Commissioner. She was deeply aggrieved that information and opinion adverse to her as an employee had been collected and published by the management review team. She was deeply aggrieved at what she saw as a lack of procedural fairness during the process. She had sought to utilise the Privacy Act's processes as a way of dealing with what she saw as inaccurate, misleading, unfair and defamatory material.

32 In my view, the limitation that the Privacy Commissioner and the applicant seek to have read into the words of the exclusion can not be found.

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'. The management review team did not set out on its task with any specific term of reference relating to the applicant. The terms of reference were general ones. In light of the history that gave rise to the review, it is not surprising that issues arose in the course of the review as to the nature of the relationships between staff at the school. The review formed views as to the applicant's suitability for continuing her employment at this school. The three texts that precede the fourth text making the transfer recommendation should be viewed in that context. (As it has transpired the transfer recommendation has not been implemented.)

34 I acknowledge the Privacy Commissioner's submission that a management review does not belong to the routine personnel process of agencies. I accept that this in not an instance of information being generated in, for example, a selection, promotion, discipline or involuntary retirement process. But a management review is itself an orthodox instrument of administration, and one which will frequently look at the performance of employees.

35 A management review of the operation of a small primary school triggered by parent complaints will, it seems to me, inevitably focus on (among other things) work practices and work arrangements. The principal and the teaching staff face the risk that their performance in the work place may be assessed. Information may be collected and opinions formed by the management review which bear on the suitability of the employment of individual members of staff. The applicant has found herself in that unhappy situation.

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).

37 I have reviewed the information which the applicant seeks to put in issue, and I am satisfied that it all falls within the exclusion as I interpret and apply it. Consequently the agency's objection succeeds, and the Tribunal is without jurisdiction.

38 In case I am wrong on this point, I will refer briefly to the other objections raised by the agency.

Does some of the Conduct in issue pre-date the Act?

39 The applicant referred in her letter specifically to s 16 of the Privacy Act, the IPP relating to the need to check accuracy before use. She referred specifically in her submissions to the Tribunal to another IPP, s 18 which places limits on the disclosure of information.

40 In reply to the attempt to rely on s 16 (Accuracy IPP), the respondent claims that the `use' to which this requirement is said to attach occurred before the date of commencement of the Act, 1 July 2000. The basic submission is that the adverse information and comment was collected and `used' prior to the completion of the Report which had occurred by the end of June 2000; checks for accuracy would have been required (were the IPP relevant) before that date. The agency stated that the report was completed in June. The report bears that date. I accept, in the absence of any countervailing evidence, that the report was completed by the end of June 2000.

41 Use: I do not agree with the submission from Mr McDonnell that all of the information in issue could be said to have been formulated and used as early as 31 May 2000 for the following reasons.

42 Ten questions were put to the applicant at the meeting with the review team on 31 May 2000 (see attachment 2, Bundle B). Necessarily those questions could not have covered the review team's assessment of her responsiveness (the first text) or the events that occurred on 16 June 2000 (the second text).

43 Questions relevant to the third text (the conclusions re interpersonal relations) were asked. So it could be said that she was on notice that this was a matter of concern to the review team, but the review team did not at that point seek to suggest to her what their final conclusion was. So again it can not be said that the third text had been formulated, let alone `used', as at 31 May 2000.

44 The fourth text is the recommendation that she be transferred. That was first published, according to the material before the Tribunal, on 19 June 2000. It is first found in the notice circulated for confidential discussion to staff on 19 June 2000 by the review team (See attachment 3, Bundle B).

45 At most the relevant texts could be said to have been formulated on or after 19 June 2000. I am satisfied that the information in issue had been formulated and commenced to be `used' by the agency by the end of June 2000. It follows that, had the Accuracy IPP (s 16) been in force the necessary steps would need to have been taken by the agency prior to the end of June. Accordingly, I accept the submission for the agency that the IPP was not in force at the relevant time, though I place the relevant time at a different point to that suggested by the agency.

46 Disclosure: The applicant's letter of 23 February 2000 puts in issue possible breaches of the Privacy Act by way of `public disclosure of the allegations.' Public disclosure occurred on 1 August 2000. While the Privacy Act had at that point generally commenced, the respondent had received an exemption from compliance with nine of the IPPs (including the Disclosure Limitation IPP (s 18) but not including the Accuracy IPP (s 16)) where `compliance might detrimentally affect (or prevent the proper exercise of) any of the agency's investigative functions or its conduct of any lawful investigations'. `Investigation', `investigative functions' and `lawful investigation' are defined. See Directions issued by Privacy Commissioner pursuant to s 41 of the Privacy Act operative until 31 December 2000 (E1 and E2 of the material filed). Mr McDonnell submitted that the disclosure in issue fell within the scope of the exemption. I did not hear detailed submissions from the other parties or the Privacy Commissioner on this point. As it is not essential to the disposal of the case in light of my first conclusion, I have not formed any view on whether the exemptions issued by the Privacy Commissioner cover the disclosures in issue here so as to make the Disclosure Limitation IPP inapplicable.

47 I uphold the respondent's objection that the conduct relevant for the purposes of the Accuracy IPP (s 16) occurred prior to the date of commencement of the IPP. I express no concluded view as to the applicability of the Disclosure Limitation IPP (s 18).

Was the Internal Review Application Time Barred?

48 As this issue was argued at some length, I will deal with it.

49 The grounds of objection with which I have dealt were not alluded to in the agency's reply of 20 March 2001 to the applicant's letter of 20 February 2001. They were identified by the Crown Solicitor's office. The agency's letter objected to the application on the ground that it was outside the time limit set by the Privacy Act. The agency relied on s 53(3)(d) of the Privacy Act, which permits an agency to decline to deal with a matter once six months has passed since the applicant `first became aware of the conduct that is the subject of the application.'

50 The reply asserts that the application was lodged `outside' the internal review time limit that commenced to run when `the applicant first became aware of the conduct.' The reply is unsatisfactory in two respects. It does not specify what was the `conduct' for the purpose of its calculation. Nor does it explain on what evidence it relied to decide when the applicant `first became aware' of the conduct. Certainly it was not given any information by the applicant as to when she `first became aware' of the conduct. It appears to have relied on inference.

51 It was only after the applicant lodged her application for review with the Tribunal that the agency set out its reasoning process, asserting that the applicant first become aware of the conduct of the agency affected by the Accuracy IPP on 31 May 2000 and of conduct of the agency affected by the Disclosure Limitation IPP on 1 August 2000.

52 There should be clarity in any agency reply as to when it is said that time began for the purpose of assessing whether the review application is time barred. Clearly there is a danger that the agencies will make self-serving calculations.

Agency Refusals to Extend Time for Internal Review Application: Externally Reviewable?

53 It will be seen that the agency reply of 20 March 2001 also canvassed the matter of whether `an extension' of the 6 month period should be permitted. This was an allusion to the power vested in the agency by s 53(3)(d). While the normal time limit for an internal review application is 6 months from when the applicant `first became aware' of the relevant conduct, an agency `may allow' lodgment at a `later date.' The agency refused to exercise this discretion on the ground that it had `evaluated' the information and there was no evidence that the review report was not relevant, complete, accurate, up to date or misleading.

54 At hearing Dr Gaudin, for the Privacy Commissioner, submitted that if the present application for review was defective as to jurisdiction in other respects, it could perhaps be saved by being recast as an application for review of the agency's refusal to extend time in relation to the decision to refuse to consider the internal review application. Mr McDonnell submitted that the Tribunal had no jurisdiction to review properly founded refusals to entertain internal review applications. Dr Gaudin submitted that there was jurisdiction by reference to s 55(1)(b) and s 53(3)(d) of the Privacy Act.

55 Section 55(1) provides:

`(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.'

56 While the applicant had not sought to put her application for review on the basis now suggested as a possible basis by Dr Gaudin, it was clear that she was happy to adopt it as a way of ensuring that her case received some consideration by the Tribunal.

57 As there had been prior notice of this point, I gave the parties seven days in which to respond in writing, if they wished, to these submissions. Submissions were received from the Privacy Commissioner, Mr McDonnell and the applicant.

58 Dr Gaudin contended that the Tribunal's review jurisdiction extended to the refusal of the agency to entertain the application as it was an `action taken ... in relation to the application' within the meaning of s 55(1)(b). In the written submissions, the Commissioner said: `If paragraph (b) is not intended to apply to a refusal to conduct an internal review one would expect it to refer to the conduct of the review rather than to the application.'

59 The Commissioner submitted that if there is no jurisdiction for the Tribunal to review agency conduct which is the subject of a late application, then agencies would seek to preserve themselves from review by following the `rational course' of refusing to accept any late application. It was also submitted that legislation which confers rights on individuals should not be read so as to remove or preclude the exercise of such rights in the absence of clear language to that effect. These are policy considerations which might be open to be taken into account if ambiguity can be found in the language used in the provision.

60 The Commissioner also noted that the principal legislation relating to internal review of reviewable decisions, the Administrative Decisions Tribunal Act 1997 (the Tribunal Act), does give the Tribunal a right to review an agency refusal to entertain a late application for internal review: see Tribunal Act, s 55(2)(b). The Tribunal Act provision allowing interested persons to apply for internal review of a reviewable decision is s 53. The Privacy Act disapplies s 53 of the Tribunal Act: see s 52(4); and provides for a separate internal review procedure in its s 53.

61 He submitted in this regard that if s 55(1)(b) of the Privacy Act were to be found not to allow the Tribunal to review agency decisions to refuse late internal review applications, applicants under the Privacy Act `would be treated differently and accorded fewer rights than applicants for reviewable decisions under other legislation.'

62 Mr McDonnell submitted that the Privacy Commissioner has misconstrued the meaning of `action' as used in s 55(1)(b). He submitted that there is a dichotomy drawn in paras (a) and (b). Para (a) refers to the agency's conclusions in respect of the application, referring to the `findings of the [internal] review'; and the expression `the action taken by the public sector agency in relation to the application' is to be understood as a reference to the action taken in implementation of the findings of the review.

63 He referred then to the principal provision conferring internal review rights, s 53, and submitted that s 55 needs to be construed in light of the scheme for internal review set down in s 53.

64 He pointed to s 53(8) where the findings/action dichotomy is first employed. Section 53(8) requires the agency after the completion of the review to notify the applicant in writing of (a) the `findings of the review (and the reasons for those findings)', (b) `the action proposed to be taken by the agency (and the reasons for taking that action), and (c) `the right of the person to have those findings, and the agency's proposed action, reviewed by the Tribunal.'

65 While the words used in s 55(1)(a) and (b) are not identical to those used in s 53(8)(a) and (b), they involve, he submitted, the same dichotomy. He submitted that the expression used in s 55(1)(b) `the action taken by the public sector agency in relation to the application' covers the same ground as the expression used in s 53(8)(b), `the action proposed to be taken by the agency (and the reasons for taking that action)'.

66 The submission also referred to s 53(7) listing the responses that an agency may give to an application for internal review including (a) `take no further action on the matter'. This, it is submitted, also supported a construction that action is used in this part of the Privacy Act to cover `post review' action.

67 He also submitted that it would be strange if the legislative purpose had been that the Tribunal could review `each and every procedural requirement' connected with the management of an internal review application by the agency.

68 There were also further submissions from the applicant on this issue. They did not contain any reasoning in relation to the construction of the words used in the relevant provisions, but consisted of an, in essence, a plea to the Tribunal to assert jurisdiction on the basis of various injustices that the applicant considers that she has suffered because of the way the agency has handled publication of the report.

69 In my view, `an action' taken by an agency `in relation to an application' can only refer to an action taken in relation to a competent application. There can be no competent application if a time requirement (or other requirement such as a fee requirement) affecting lodgment is not met (cf. Cheung v Administrative Decisions Tribunal [2000] NSWSC 1062 (Dunford J)).

70 The Privacy Commissioner drew attention to the position that applies in relation to the general internal review scheme, whereby applicants can seek review by the Tribunal in situations where an agency declines to deal with an application for internal review that has been lodged late. Rather than assisting the Privacy Commissioner's argument, this highlights in my view the difficulty that is faced in discerning any power in the Tribunal to examine a decision by an agency to refuse an application which is out of time. Had the legislature intended that the flexibility found in the general scheme should apply to Privacy Act internal reviews it is to be expected that it would have so provided.

71 The scheme for internal review in the Privacy Act replaces the general scheme for internal review of agency decisions found in the Tribunal Act. The Freedom of Information Act 1989 is another example of legislation which sets up a scheme for internal review separate from the general scheme in the Tribunal Act.

72 I also agree with the submission of Mr McDonnell for the reasons that he gives relying on s 53(7) and s 53(8) that the word `action' is used in Part 5 of the Privacy Act to refer to action taken by the agency consequent on the findings of an internal review.

73 Where it is found, or there is no dispute, that the application for internal review is out of time, the agency has, I consider, a discretion to refuse to accept the application which is not amenable to reconsideration by the Tribunal.

74 If the agency does accept the application out of time, then its further actions are subject to the possibility of review by the Tribunal. As I read s 55 it is not referring simply to the `application' as made by the applicant but to an application which attracts the internal review jurisdiction of the agency, i.e. what I have described as a competent application. This is an Act which has numerous boundaries on the scope of its operation (for example statutory exclusions in respect of the meaning of `personal information', statutory exclusions of areas of conduct and in some instances entire agencies, powers of exemption from compliance vested in the Commissioner). A limitation affecting Tribunal jurisdiction to review refusal to entertain out of time applications is simply another example.

75 Accordingly, my conclusion is that the present application for review can not be saved in the way suggested by the Privacy Commissioner.

76 By way of postscript, I note that while I have concluded on the material before me that the course preferred by the applicant to test the conduct of the respondent is not available to her (application for review by this Tribunal), she did indicate that, in her belief, there were other avenues open to her, principally the Industrial Relations Commission.

Order

77 Application dismissed.