Z v NSW Department of Education and Training [2010] NSWADT 25 (28 January 2010)

Last Updated: 1 February 2010

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Z v NSW Department of Education and Training [2010] NSWADT 25


DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
Z

RESPONDENT
NSW Department of Education and Training



FILE NUMBERS:
083159

HEARING DATES:
20 November 2008 and 7 July 2009

SUBMISSIONS CLOSED:
28 August 2009



DATE OF DECISION:
28 January 2010

BEFORE:
Wilson R - Judicial Member





LEGISLATION CITED:
Freedom of Information Act 1989
Commission for Children and Young Persons Act 1988, s.33

CASES CITED:


TEXTS CITED:


APPLICATION:
Amendment of records under the Freedom of information Act 1989; meaning of relevant employment proceeding in s.33 Commission for Children and Young Persons Act 1988.

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
In person
RESPONDENT
S Bilbie-Taylor, solicitor


ORDERS:
1 The proceedings are listed for a directions hearing on 16.02.10 at 12:30 pm, with leave granted to the parties to list the proceedings for another time should this date be unsuitable.


Reasons for Decision:

REASONS FOR DECISION

1 The applicant commenced these proceedings pursuant to the Freedom of Information Act 1989 together with other proceedings, also under that Act. These other proceedings (being matter number 073125) have been finally determined by withdrawal. The current proceedings though have proceeded to final determination by the Tribunal. During interlocutory stages, and between the hearing days, the parties engaged in extensive negotiations with the consequence that they have been able to bring this matter for hearing on a single precisely determined issue. This issue will become apparent during the following discussion, however, in summary, the parties have been able to reach a stage where they have asked the Tribunal to determine whether certain records maintained by the respondent, which pertain to the applicant, should be amended, to some degree at least. The parties should be commended for their efforts in this regard.

2 The applicant has expressed concern in relation to the publication of the names of certain persons in these reasons and also as to the publication of information, which could possibly identify the nature and locus of the acts and events involved. These matters have a degree of sensitivity for him.

3 The applicant is a former employee of the respondent having been engaged in duties at one of the respondent’s teaching facilities, initially full time and then as from 1 February 1993 on a casual basis. In 1992 certain events occurred which involved the applicant and persons connected with the facility at which he was then engaged. These events lead, inter alia, to criminal charges being laid against the applicant, which were eventually prosecuted. In 1996 the applicant was convicted of a criminal offence arising from these events but, in July 1997, his conviction was overturned on appeal and a verdict of not guilty was entered. He therefore has no criminal convictions recorded against him.

4 At the time that the applicant commenced these proceedings, the respondent maintained a number of records, which pertained to the applicant. These proceedings are concerned with two particular types of records, only one of which is the subject of an amendment application. Other records maintained by the respondent concerning the applicant are not material to these proceedings, including the checklist which appears in exhibit R1 at tab ‘A’. The first of these two documentary records was, and still is, a record which lists the names of persons who are ineligible for employment with the respondent. The applicant’s name appears on that list (referred to herein as the not to be employed list). The respondent has in place a procedure whereby persons may be placed on this list on the one hand, or removed from it on the other. The applicant has made application to have his name removed. However, the applicant does not seek amendment of this record.

5 The second of these two particular records is a document headed Review of Notification, a partial copy being exhibit A1 (referred to herein as the review document). This document, it appears, came into being as part of a review process whereby the respondent, perhaps from time to time, reviews the position of persons that it has notified under protective legislation, currently being the Commission for Children and Young Persons Act 1988 (referred to herein as the Commission Act). Alternatively, it may have come into being following a review conducted in 2004, the precise position being unclear on the evidence. However this may be, the applicant’s name appears on this record at item 116 and certain information is there recorded against his name. The applicant argues that this information is incorrect or otherwise misleading and is seeking to have it amended pursuant to s.39 Freedom of Information Act 1989. The applicant does not seek to have his name removed from the list but rather wishes the information contained in two of the last three vertical columns to the right of the page to be changed. The first of these columns has a tick in the "yes" box, whereas the applicant argues that the "no" box should be ticked or, alternatively, that both boxes be left blank. The second vertical column requires no change, both boxes being blank. The third column has no box checked, whereas the applicant says that the "yes" box should be ticked, although leaving both boxes blank would be an acceptable outcome to him.

6 The record as it stands informs a reader that the matter is a relevant employment proceeding and that it should remain in category 1. However, if it is amended as the applicant requests the entry against his name will inform a reader that the matter is not a relevant employment proceeding. There is no description in the record as to what the matter precisely is.

7 It is common ground that the issue for determination is whether or not the entry against the applicant’s name in this record is incomplete, incorrect, out of date or misleading. If it is, then amendment is apposite. If it is not, then amendment in accordance with the application may be refused (s.44(a) Freedom of Information Act 1989). The respondent accepts that the s.39(a) and (b) requirements are met, and there is no doubt that the applicant believes that the entry is incorrect in fact and in law, as s.39(c) requires, and thus he is able to make the application validly. However, the critical subsection is s.44(a) rather than s.39(c), the question being whether the facts satisfy this particular subsection. This question directs attention to the provisions of the Commission Act.

8 The relevant provisions are contained in Part 7 of the Commission Act. Section 39 of the Act, as it presently stands, requires an employer to notify the Commission of certain information concerning an employee upon the completion of any relevant employment proceedings that have been taken against the employee, unless certain findings have been made that are favourable to the employee, speaking generally. This is only one of the protective mechanisms that the Act employs. Section 43 of the Act, it should be noted, enables the applicant to bring this present application. Section 43A enables an employer to amend or withdraw a notification under s.39.

9 A relevant employment proceeding is defined, in the current Act, as proceedings which review the professional conduct of an employee involving reportable conduct, such as sexual misconduct or violence towards a child, ill-treatment to or neglect of a child and causing psychological damage to a child (see relevant definitions in s.33 of the Act). The relevant definitions in earlier versions of the legislation will need to be addressed in due course.

10 The applicant’s position is that at no relevant stage has any such proceedings been commenced in relation to him, let alone completed (exhibit A2 paragraph 23). His submissions distinguish the several reviews and "investigations" that have occurred over the years and argue that they do not amount to relevant employment proceedings. For example, he argues that the reviews following his application to have his name removed from the not to be employed list do not amount to a relevant employment proceeding (see exhibit A2 paragraph 24 and exhibit R1 annexure F).

11 The respondent’s position is that the critical time is the present, the document in question being a review of a notification. Therefore the document speaks as from the date of its creation, which is unknown, until the present time. The critical time therefore is not the time when the applicant’s name, and associated information, was first reported (see exhibit A2 appendix L). Further, the definition of relevant employment proceeding is broad and it should not, the respondent argues, be confined to procedures involving formal hearings and detailed submissions and argument. Any action taken by an employer to investigate the suitability of an employee with a view to dismissal, or with a view to future employment, would suffice, the respondent argues. Given this, the respondent submits, procedures and investigations have in fact occurred in the past which would amount to relevant employment proceedings on the proper construction of the provision in question. It is argued, for example, that the steps leading up to placing the applicant’s name on the not to be employed list was such a proceeding. To this should be added the fact of the respondent’s decision to dismiss the applicant from casual employment. The respondent also relies upon the reconsideration process following the applicant’s acquittal of the criminal charges, culminating in the letter to the applicant dated 13.03.01, whereby a determination was made that other grounds sufficed to support the notification (exhibit R1 paragraphs 18, 19 and 20; exhibit A2). Further, a review of the reporting of the applicant’s name was undertaken sometime in 2005 (exhibit A2 appendix K) which may also amount to a requisite proceeding, although this will depend upon the relevant time frame.

12 The issue is a serious one, for both the applicant and the respondent, and therefore requires the parties to adduce sufficient evidence to enable the Tribunal to come to a proper determination, that is, one which it is satisfied is the correct decision and which is based on reliable evidence that persuades the Tribunal that its factual findings are the correct ones to make. The parties have elected to proceed by way of submissions and supporting documentary evidence rather than by filing precise statements of evidence by witnesses who have adequate knowledge of the events that occurred. Correspondence and reports often contain assertions of fact which are unreliable; often because the writer has gleaned the information stated therein from other documents on file or has interpreted that information in a particular way. Unfortunately this is the case here, and the Tribunal is not persuaded that it can properly act on the documentary evidence that has been filed. As the applicant noted in argument, many of these documents do not distinguish with sufficient clarity the placing of the applicant’s name on the not to be employed list and the notification of his name under the Commission Act. This is not to be critical of the parties as their decision to proceed essentially on the papers filed without adducing precise evidence was no doubt a reasonable one at the time. However, the Tribunal’s examination of the documents filed has not enabled it to reach, with sufficient conviction, critical factual findings that it must make in order to properly determine the issue that the parties have raised for consideration.

13 Consequently, the Tribunal’s view is that the only proper course is to allow the parties to address by way of proper evidence and submission the question whether a relevant employment proceeding has in fact occurred. A directions hearing will be convened for this purpose as set forth in the orders made. The parties are reminded that the Tribunal is not a court of law and it cannot change the fact that notification of the applicant’s name has in fact occurred. The Tribunal is only empowered by the legislation to direct amendment of the record under review, if amendment be appropriate: it has no declaratory powers.

14 To assist the parties in this regard the Tribunal notes that there was a material change in relevant circumstances when the applicant’s appeal against conviction was successful. From this point onwards it appears that the respondent has relied upon other circumstances to support the notification. This raises the question whether the matter referred to in the review document (exhibit A1) is the criminal proceedings and conviction as originally notified (see exhibit A2 appendix A and appendix L) or is the other circumstances that emerged during the course of the applicant’s trial (exhibit R1 paragraphs 18, 19 and 20). This question deserves proper consideration as it may form a basis for finding that the relevant record, as it presently stands, is uncertain or misleading or perhaps out of date. Should the parties be minded to consider this aspect prior to the forthcoming directions hearing they may be able to reach an acceptable resolution of their dispute by determining an appropriate notation to the record by consent.