Jay v Department of Housing and Public Works (No 2)
[2024] QCATA 116
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- Jay v Department of Housing and Public Works (No 2)[2024] QCATA 116
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Jay v Department of Housing and Public Works (No 2)[2024] QCATA 116
Jay v Department of Housing and Public Works (No 2)[2024] QCATA 116
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Jay v Department of Housing and Public Works (No 2) [2024] QCATA 116 |
PARTIES: | Kevin Maurice Jay (applicant) v Department Of House And Public Works (respondent) |
APPLICATION NO/S: | APL069-24 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 14 May 2024 (ex tempore) |
HEARING DATE: | 14 May 2024 |
HEARD AT: | Brisbane |
DECISION OF: | Mellifont J, President |
ORDERS: |
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CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – where the appellant has brought an application to appeal a decision of the Information Commissioner – where pursuant to s 132 of the Information Privacy Act 2009 (Qld) an appeal to the Tribunal may only be on a question of law – whether appellant raises any question of law in decision appealed from ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the appellant has requested various orders including an amendment to a work order - whether the orders sought by the appellant are within the power of Tribunal Human Rights Act 2019 (Qld) Information Privacy Act 2009 (Qld) ss 44, 53, 132 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47 B47 and Department of Housing, Local Government, Planning and Public Works [2024] QICmr 9 Horrocks v Department of Justice [2012] VCAT 241 O'Connor v The Department of Child Safety, Seniors and Disability Services [2024] QCATA 34 Wotton v State of Queensland (2012) 246 CLR 1 XYZ v Victoria Police [2010] VCAT 255 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | S M Francis, Principal Lawyer, Crown Law |
REASONS FOR DECISION
- [1]This is an appeal brought by Mr Jay in respect of a decision by the Information Commissioner on 22 February 2024: B47 and Department of Housing, Local Government, Planning and Public Works [2024] QICmr 9 (‘B47’). The appeal is brought pursuant to section 132 of the Information Privacy Act 2009 (Qld) (‘IP Act’). On 6 April 2024, Mr Jay made an amendment application to the Department of Housing and Public Works (‘the Department’) under section 44 of the IP Act regarding a work order document.
- [2]Section 44 of the IP Act provides that an individual who has had access to a document of an agency or a document of a Minister, whether or not under this Act, may apply to the agency or Minister for amendment of any part of the individual’s personal information contained in the document that the individual claims is inaccurate, incomplete, out of date or misleading. Paragraph 4 of section 44 sets out the requirements of an amendment application. Section 44(4) includes the following requirements:
- (f)if the applicant claims the information to be inaccurate or misleading –state the amendments the applicant claims are necessary for the information to be accurate and/or not misleading; and
- (g)if the applicant claims the information to be incomplete or out of date, state the other information that the applicant claims is necessary to complete the information or bring it up to date.
- [3]The decision of the Department in respect of the amendment application by Mr Jay was to refuse the amendment of the application on the basis that it did not comply with the requirements of section 44. That decision was made after correspondence with Mr Jay seeking clarification in respect of the amendments to various parts of the work order that the applicant was seeking, in particular, the Department was seeking for the applicant to state, with clarity, the amendments he claims which were necessary for the information to be accurate and/or not misleading, and for it to be correct and up to date. That was a decision made under section 53 of the IP Act. That Act creates a right of external review to the Information Commissioner. The issue for determination before the Information Commissioner was whether the amendment application met the application requirements under the IP Act, and whether the Department was entitled to refuse to deal with the amendment application.
- [4]The Information Commissioner set out its reasoning within the decision, referred to as B47, including factual findings and its conclusion at law that neither the application nor the additional information provided by Mr Jay in the course of correspondence was such as to render the application compliant with sections 44(4)(f) and 44(4)(g). I note in that respect in paragraph 14 the Information Commissioner observed that the applicant provided a substantial amount of material to the Department to support the amendment application and to explain why the information was inaccurate, incomplete or misleading. However, the information provided did not resolve the compliance issues as the applicant failed to state the amendments required for the information to be accurate, correct, up to date or not misleading.
- [5]The Information Commissioner then concluded, in paragraph 15, having considered the information provided from the Department and the initial submissions received from the applicant, Office of the Information Commissioner (‘OIC') conveyed its preliminary view to the applicant that the Department made the appropriate decision to refuse to deal with the amendment application. The applicant did not accept this preliminary view and lodged a submission to the court of his position.
- [6]In his submission the applicant provided supporting information to explain why the information was incorrect and inaccurate, however, the applicant did not provide information about the amendments which he considered necessary for his personal information in the work order to be accurate or not misleading, and therefore the requirements under sections 44(4)(f) and 44(4)(g) of the IP Act had not been met. OIC affirmed its preliminary view and the Information Commissioner stated:
- [16]The applicant contested this view however, in his submission, no further information addressing the specific compliance issues was provided. The applicant also raised concerns regarding the conduct of departmental officers, however, these concerns are not an issue which I have jurisdiction to consider under the [Information Privacy] Act. OIC’s functions do not extend to investigating complaints about agency conduct. OIC’s jurisdiction in this case is limited to 5 determining whether the Department was entitled to refuse to deal with the imminent application.
- [17]For the above reasons I find that the application has not met the requirements under section 44(4)(f) and (g) of the IP Act and therefore the Department was entitled to refuse to deal with the imminent application.
- [7]As I have already stated Mr Jay seeks to appeal that decision to this Tribunal. The power of this Tribunal on appeal from a decision of the Information Commissioner is set out in section 132 of the IP Act. That section provides that a participant in an external review may appeal to the Appeal Tribunal of QCAT (QCATA) against a decision of the Information Commissioner on the external review. The section provides that the appeal may only be on a question of law and that the appeal may only be by way of a rehearing. The matter before me today considers the preliminary issue of whether the applicant has or could today identify an alleged error or errors of law in respect of the decision of the Information Commissioner.
- [8]Today’s proceedings came about in consequence of an on the papers decision that I made on 9 April 2024, for which reasons have been issued.[1] On that day, I issued directions for Mr Jay and for the Department to file any submissions and any material they wished to rely upon in respect of whether Mr Jay’s appeal or part of it should be struck out pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), and, I have given Mr Jay the opportunity this morning, orally, to seek to articulate the alleged error of law or errors of law in the Information Commissioner’s decision that as a matter of law the amendment application was non-compliant and that it was properly refused pursuant to section 53 of the IP Act.
- [9]I note also that Mr Jay’s appeal filed in the Tribunal seeks by way of order of this Tribunal:
To be given the work order with the agreed amendment attached to it that restores my, FIRE2U techs which will also correct the incident, parties locations and timelines which are evidence based that displays the actions of Mr J J N / QFEF as to make this work order compliant to the required Australian standard (AS3786) under the law. This would clear any obstacles for my senior’s health card application that I am not in department of housing accommodation and never have been at any time?
- (1)For the Ombudsman allowed non-compliance system is to be changed to the required Australian installation standard for the smoke, heat detectors connected back to the fire alarm which then includes the booster pumps with low fuel alarm and ETC all being back to base as submitted and having in part accepted by the Ombudsman as being completed. (PLEASE note this would ensure the safety of the these housing tenants and I would never ever have to interact with Mr J J N and or Mr RTC QFES in an attempt to intimidate, entrap and/or harass!
- (2)RTC breached his employment contract by voicing his concerns, which I believe the Ombudsman is aware that for years that the QFES have complained about building access being restricted by housing, with if they acted professionally that they are than abused by housing about the damage that is done while trying to save lives!
- (3)QCAT will review documents and make recommendations to the other parties?
- (4)That a manager from Airmaster which I believe is the current subcontractor to sit in on this meeting so that they may learn about the substandard installations so as to better accommodate their building maintenance programs on the system?
- [10]QCAT does not have power to make any order of the type or types sought by Mr Jay. QCAT’s power on appeal is limited to determining whether there is an error or errors of law and then ruling accordingly. In respect of whether Mr Jay has identified an error or errors of law, that is an alleged error or errors of law, by the Information Commissioner in its decision Mr Jay points to an alleged breach of human rights. In particular, he has today orally pointed to the human right of one’s security of one’s own house, and in his application has referred to what he alleges is a violation of his right to unfettered access security and enjoyment of his home, his timeline and true location, and he refers to the decision of Wotton v State of Queensland (2012) 246 CLR 1. This might perhaps be considered a broad reference to an alleged breach of the Human Rights Act 2019 (Qld) (‘HR Act’). However, I can discern no identification of a properly alleged error of law or laws in respect of that generalised submission. I note that the Information Commissioner has considered the application of the HR Act at paragraph 8 of the decision referring also to the decision of XYZ v Victoria Police [2010] VCAT 255 and Horrocks v Department of Justice [2012] VCAT 241. I note also the observations of Judicial Member McGill SC in the decision of O'Connor v The Department of Child Safety, Seniors and Disability Services [2024] QCATA 34 (‘O'Conner') at paragraph 7.
- [11]I observe also this decision under review by the Information Commissioner is about the procedural requirements of the IP Act in respect of an amendment application rather than substantive legal rights to ‘unfettered, access, security and enjoyment of home, my timeline and true location’, to use the words of the applicant. I acknowledge and respectfully agree with the observations of Judicial Member McGill SC in O'Connor at paragraphs 2, 5 and 8, which are set out in my reasons of 9 April 2024. I particularly refer to paragraph 5 of the O'Connor decision in which Judicial Member McGill SC stated:
- [5]…In principle, when an appeal is only on a question of law, the appellant should identify the question or questions of law, the subject of the appeal. Where the appellant is a litigant in person it is unrealistic to expect her to be able to formulate properly a question of law, but the Tribunal cannot give a party legal advice. It is sometimes possible to identify a question of law in the grounds raised by the appellant’s litigant in person, or in submissions in support of the material of the appeal, but I consider it is not open for the Tribunal to identify some other question of law and decide the appeal on that basis, particularly if the ground has not been dealt with by the respondent in submissions.
- [12]In considering this matter, I have read all of the material which the parties have provided, including with a particularly close eye the material provided by Mr Jay, to see whether or not that material discloses a question or questions of law that would grant jurisdiction for argument on appeal in this Tribunal. The material does not disclose an error, an alleged error or errors of law as such. The appeal by Mr Jay to the Tribunal is dismissed.
Orders
- [13]The appeal is dismissed pursuant to section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
Footnotes
[1] Jay v Department of Housing and Public Works (No 1) [2024] QCATA 73.