NSW Privacy Commissioner Breaks Legislated Protocols, Filing Preferential Submissions in
Support of Government Agency iCARE, 14.07.2023
In the forum of the NSW Civil & Administrative Tribunal, (NCAT), both the NSW Information Commissioner and NSW Privacy Commissioner are regularly represented by key experienced legal personnel from within their offices.
The Information Commissioner has the right to appear in relation to the Government Information (Public Access) Act 2009, (GIPA), and the Privacy Commissioner has the same rights in relation to the Privacy and Personal Information Protection Act 1998, (PPIP).
GIPA gives the Information Commissioner her rights to appear under Section 104(1).
PPIP gives the Privacy Commissioner her rights to appear under Section 55(6).
Each Commissioner generally relies on the premise of appearing Amicus Curiae, meaning friend of the court, one who assists the court by furnishing information or advice regarding questions of law or fact. It is a position that demands impartiality, objectivity, and honest interpretation of the applicable legislation.
Of course this ability to appear as a friend of the court and for the assistance of the court means that the Commissioners do not appear or make submissions that would see it giving favour to one party over another. Each Commissioner appears to give their statutory interpretation of their respective pieces of legislation, for the assistance of the presiding Tribunal Member, nothing more.
This however was not the case in recent proceedings brought by Telina Webb of NSW Freedom of Information against the government insurer iCARE.
The proceedings concerned an administrative review of decision by iCARE regarding an Application for Review of Conduct under Section 53 of the PPIP Act 1998.
The case clearly articulates the Tribunal’s agreeance that iCARE did in fact breach Ms Webb’s privacy, with it finally issuing a number of orders for rectification of the damage caused, reassurance it would implement new protective systems, and make recompense to Ms Webb acknowledging the damage it had caused her at least in part.
The case was determined in favour of Ms Webb despite the underlying perception the Privacy Commissioner’s representative one Ms Victoria Taylor clearly sided with iCARE throughout all her submissions.
In particular, the proceedings concerned the summonsing of one iCARE Senior Privacy Officer Ms Nikki Gibbs-Steele, who in her parallel role at that time as Chair of the NSW Right to Information & Privacy Practitioners Network, (NIPPN), had been provided the personal information of Ms Webb by iCARE’s Right to Information Officer Ms Lilli Tinszberg. The documented email trail of communications between Ms Gibbs-Steele and Ms Tinszberg showed the two had engaged in a private unrecorded conversation, then proceeded to email each other to legitimise their joint actions to breach Ms Webb's privacy, initially giving the false impression they had acted with integrity concerning Ms Webb's request for information.
Ms Gibbs-Steele had been summoned to give evidence of her involvement in that breach of Ms Webb’s privacy.
The issue of the summons took up much time of the Tribunal as Ms Gibbs-Steele flatly refused to comply with the summons at first instance, then usurped considerable amounts of public monies appealing the Tribunal’s decision and orders that she should.
Such behaviours to avoid accountability and due scrutiny saw the matter repeatedly brought back to the Tribunal inclusive of an Appeal.
Eventually Ms Gibbs-Steele was successful in ducking the summons, with the help of the Office of the NSW Crown Solicitor’s Mr Andrew Bell and at the cost of the public purse, in having the summons declared moot.
It was towards the Appeal Hearing of the Summons that the Privacy Commissioner’s representative Ms Taylor then revealed her inclination towards iCARE arguing that the summons should be dismissed, when this was outside of the Commissioner’s mandate.
Quoting Ms Taylor’s Submissions of 14th July 2023 it is easy to form the view she was biased towards iCARE for reasons unknown to both the Tribunal and Ms Webb:
“Submissions on the Dismissal of the AppealThe Privacy Commissioner agrees that:The summons issued to Ms Gibbs-Steele required her attendance for evidence on 18 January 2023; andThe summons was not extended or enlarged.
We also agree that it is arguable that the summons was then spent and placed no future obligation on Ms Gibbs-Steele to attend for evidence.
As previously submitted, the Privacy Commissioner remains of the view that:The Decision does not identify specified missing information and may not align with guidance in Roads and Maritime services v AF; AF v Roads and Maritime Services (GD) (2011) NSWCADTAP 63; andThe summons lacks legitimate forensic purpose.
On that basis, if the Tribunal is minded to dismiss this appeal as being no utility and unnecessary to determine, we will not oppose.
With the benefit of the Appellant submissions (iCARE) the Privacy Commissioner does not oppose the dismissal of the appeal on the above basis.
ConclusionThe Privacy Commissioner does not oppose the dismissal of the appeal on the above basis.
If the appeal is dismissed, we seek an order that the issue of the summonses can no longer be ventilated below.
These submissions recognise the Privacy Commissioner’s functions under the PPIP Act to promote the IPP’s and public understanding of the PPIP Act.”
Such submissions, concerning an appeal against a summons to appear and give evidence, are completely in contradiction to the recognised functions of the Privacy Commissioner.
Victoria Taylor was as a result totally out of line in making them, knowing they would be perceived for what they were, unmistakably biased towards iCARE and prejudicial towards an unrepresented opponent.
The public should be very concerned when the legislated parameters of the NSW Privacy Commissioner’s functions are usurped by overly zealous solicitors employed as public servants, particularly when actioned under the guise that they ‘recognise the Privacy Commissioner’s functions under the PPIP Act to promote the IPP’s and public understanding of the PPIP Act’ when they do nothing of the kind.
Such submissions are an embarrassment to the Commissioner and she should not hesitate to take steps to ensure such behaviours do not reoccur and that Ms Taylor is reprimanded at minimum.
The public however would expect Ms Taylor to be promptly moved on.
Contact:
Privacy Commissioner, 0435 961 691
Victoria Taylor, (02) 4677 6561
The Information Commissioner has the right to appear in relation to the Government Information (Public Access) Act 2009, (GIPA), and the Privacy Commissioner has the same rights in relation to the Privacy and Personal Information Protection Act 1998, (PPIP).
GIPA gives the Information Commissioner her rights to appear under Section 104(1).
PPIP gives the Privacy Commissioner her rights to appear under Section 55(6).
Each Commissioner generally relies on the premise of appearing Amicus Curiae, meaning friend of the court, one who assists the court by furnishing information or advice regarding questions of law or fact. It is a position that demands impartiality, objectivity, and honest interpretation of the applicable legislation.
Of course this ability to appear as a friend of the court and for the assistance of the court means that the Commissioners do not appear or make submissions that would see it giving favour to one party over another. Each Commissioner appears to give their statutory interpretation of their respective pieces of legislation, for the assistance of the presiding Tribunal Member, nothing more.
This however was not the case in recent proceedings brought by Telina Webb of NSW Freedom of Information against the government insurer iCARE.
The proceedings concerned an administrative review of decision by iCARE regarding an Application for Review of Conduct under Section 53 of the PPIP Act 1998.
The case clearly articulates the Tribunal’s agreeance that iCARE did in fact breach Ms Webb’s privacy, with it finally issuing a number of orders for rectification of the damage caused, reassurance it would implement new protective systems, and make recompense to Ms Webb acknowledging the damage it had caused her at least in part.
The case was determined in favour of Ms Webb despite the underlying perception the Privacy Commissioner’s representative one Ms Victoria Taylor clearly sided with iCARE throughout all her submissions.
In particular, the proceedings concerned the summonsing of one iCARE Senior Privacy Officer Ms Nikki Gibbs-Steele, who in her parallel role at that time as Chair of the NSW Right to Information & Privacy Practitioners Network, (NIPPN), had been provided the personal information of Ms Webb by iCARE’s Right to Information Officer Ms Lilli Tinszberg. The documented email trail of communications between Ms Gibbs-Steele and Ms Tinszberg showed the two had engaged in a private unrecorded conversation, then proceeded to email each other to legitimise their joint actions to breach Ms Webb's privacy, initially giving the false impression they had acted with integrity concerning Ms Webb's request for information.
Ms Gibbs-Steele had been summoned to give evidence of her involvement in that breach of Ms Webb’s privacy.
The issue of the summons took up much time of the Tribunal as Ms Gibbs-Steele flatly refused to comply with the summons at first instance, then usurped considerable amounts of public monies appealing the Tribunal’s decision and orders that she should.
Such behaviours to avoid accountability and due scrutiny saw the matter repeatedly brought back to the Tribunal inclusive of an Appeal.
Eventually Ms Gibbs-Steele was successful in ducking the summons, with the help of the Office of the NSW Crown Solicitor’s Mr Andrew Bell and at the cost of the public purse, in having the summons declared moot.
It was towards the Appeal Hearing of the Summons that the Privacy Commissioner’s representative Ms Taylor then revealed her inclination towards iCARE arguing that the summons should be dismissed, when this was outside of the Commissioner’s mandate.
Quoting Ms Taylor’s Submissions of 14th July 2023 it is easy to form the view she was biased towards iCARE for reasons unknown to both the Tribunal and Ms Webb:
“Submissions on the Dismissal of the AppealThe Privacy Commissioner agrees that:The summons issued to Ms Gibbs-Steele required her attendance for evidence on 18 January 2023; andThe summons was not extended or enlarged.
We also agree that it is arguable that the summons was then spent and placed no future obligation on Ms Gibbs-Steele to attend for evidence.
As previously submitted, the Privacy Commissioner remains of the view that:The Decision does not identify specified missing information and may not align with guidance in Roads and Maritime services v AF; AF v Roads and Maritime Services (GD) (2011) NSWCADTAP 63; andThe summons lacks legitimate forensic purpose.
On that basis, if the Tribunal is minded to dismiss this appeal as being no utility and unnecessary to determine, we will not oppose.
With the benefit of the Appellant submissions (iCARE) the Privacy Commissioner does not oppose the dismissal of the appeal on the above basis.
ConclusionThe Privacy Commissioner does not oppose the dismissal of the appeal on the above basis.
If the appeal is dismissed, we seek an order that the issue of the summonses can no longer be ventilated below.
These submissions recognise the Privacy Commissioner’s functions under the PPIP Act to promote the IPP’s and public understanding of the PPIP Act.”
Such submissions, concerning an appeal against a summons to appear and give evidence, are completely in contradiction to the recognised functions of the Privacy Commissioner.
Victoria Taylor was as a result totally out of line in making them, knowing they would be perceived for what they were, unmistakably biased towards iCARE and prejudicial towards an unrepresented opponent.
The public should be very concerned when the legislated parameters of the NSW Privacy Commissioner’s functions are usurped by overly zealous solicitors employed as public servants, particularly when actioned under the guise that they ‘recognise the Privacy Commissioner’s functions under the PPIP Act to promote the IPP’s and public understanding of the PPIP Act’ when they do nothing of the kind.
Such submissions are an embarrassment to the Commissioner and she should not hesitate to take steps to ensure such behaviours do not reoccur and that Ms Taylor is reprimanded at minimum.
The public however would expect Ms Taylor to be promptly moved on.
Contact:
Privacy Commissioner, 0435 961 691
Victoria Taylor, (02) 4677 6561