Australia: NSW Government Bulletin – 19 April 2017

Last Updated: 23 April 2017
Article by Christine Jones and Kim Nguyen

DAB v Byron Shire Council [2017] NSWCATAD 104

A resident of Byron Shire Council complained to the Tribunal that the Council's new "pay by plate" parking scheme breached information protection principles under the Privacy and Personal Information Protection Act 1998 (the Act).

Council had previously operated a metered parking scheme, whereby eligible residents, such as the complainant, were issued exemptions by way of paper permit. Under the new scheme, eligible persons wishing to be exempt from parking fees were required to enter their name, address, licence number and other details into a web portal operated by Council. Data entered into this portal was then transmitted to two servers – one server that contained all of the data, and one that contained only the licence plate numbers of exempted residents.

Practically, this new scheme required that any motorist wishing to park their car in a metered parking space enter their licence plate number into the parking meter. This number was then transmitted to the server and compared to the database of exempt numbers. If it was found to be exempt, then no payment would be required.

The Byron resident complained that by requiring people to enter their licence plate numbers into a parking meter, Council had effectively collected personal information which, when compared with other information possessed by Council, was capable of identifying them. In doing so, it was argued that Council had breached the Act because:

  • the information was not collected for a lawful purpose;
  • it was not reasonably necessary to collect the information to conduct a pay parking scheme;
  • the collection of the data was unlawfully made accessible to the third party hosts of the servers; and
  • residents were not warned before entered the information as to who had access to the information, the purpose for which it was held and whether data entry was required by law or voluntary.

The Tribunal found that in order for any of these breaches to be made out, the Byron resident must establish that a licence plate number is "personal information" for the purpose of the Act.

Section 4 of the Act defines "personal information" as "information... about an individual whose identify is apparent or can reasonably be ascertained from the information."

It was agreed that the data within Council's web portal was personal information because it included the name and addresses of each exemption holder as well as their licence plate number. However, the issue for determination was whether the licence plate number alone, when entered into a parking meter, constituted personal information.

In order to answer this, the Tribunal considered whether the licence plate number was information "about an individual" which, when compared to other information Council holds or has reasonable access to, was capable of identifying the motorist.

The Tribunal considered this by reviewing the three classes of people affected by the parking scheme, namely:

  1. people who were not exempt and were required to pay for parking;
  2. people who were exempt under the new scheme; and
  3. people who held existing paper permits which exempted them under the old scheme and continued under the new scheme.

In relation to the first category, the Tribunal held that there was no evidence that Council ever held or had access to data matching the identities of people to their licence plate numbers. To this end, such information could not be considered personal information under the Act.

For categories two and three, the Tribunal held that no data (including licence plate numbers) was stored by parking meters. Further to this, the only use made by a parking meter of the licence number when entered, was to interrogate the server containing the database of exempted numbers. Therefore, the Tribunal found that it was very unlikely that the identity of an exemption holder could practically and reasonably be ascertained from the information, whether by comparison with other data held by Council or otherwise.

To this end, the Tribunal found that a licence plate number, when entered into a meter without any other data, is not information "about an individual" and as such, Council could not have breached any of the privacy principles under the Act as the information was not "personal information".

The Tribunal added that even if the finding above is incorrect, the Tribunal would still find that the privacy principles were not breached because:

  • the collection of licence plate numbers was made for a lawful purpose, namely the operation of a metered parking scheme;
  • the collection of the data was reasonably necessary for the operation of the parking scheme;
  • the data was not collected by unlawful means and was not accessible by third parties;
  • the data collected was not intended to be transmitted to parties other than Council;
  • there was no requirement for Council to provide its name and address at the meter as no personal information was required to be provided;
  • Council did not use the data for any purpose other than the proper administration of the parking scheme; and
  • Council did not fail to take reasonable safeguards to protect the data or prevent unauthorised access to the data.

In the media

Productivity Commission report: Consumer Law Enforcement and Administration
The Government has today welcomed the Productivity Commission's report into Consumer Law Enforcement and Administration. The report makes four recommendations and 12 findings, and notes the complexities and challenges of having 10 regulators administer and enforce one law across the country" (12 April 2017). More...

Targeting repeat offenders with intensive case management
New Custodial Case Management Units will be rolled out in correctional centres across NSW within the next two years as part of the NSW Government's Strategy to Reduce Reoffending, to make communities safer (06 April 2017). More...

Sirius heritage building decision took too long, Sydney court hears
Former New South Wales Environment Minister Mark Speakman breached legislation by taking too long to decide the fate of Sydney's iconic Sirius building a court hears (06 April 2017). More...

Attorney-General: Former Senator Bob Day
Today the High Court, sitting as the Court of Disputed Returns, unanimously held that former Senator Bob Day was not validly elected to the Senate in July last year. This is the outcome the Government sought from the Court (05 April 2017). More...

Funding boost for community legal service
The NSW Government has secured the immediate future of Community Legal Centres (CLC) with more than $6 million in additional support over the next two years (05 April 2017). More...

Therapy dogs go on trial
NSW will trial the use of therapy dogs to support children and vulnerable victims during courthouse visits (04 April 2017). More...

Major crime rates continue to fall or remain stable in NSW
Minister for Police Troy Grant has welcomed the latest quarterly report by the Bureau of Crime Statistics and Research (BOCSAR), which shows crime rates continue to be at record lows (03 April 2017). More...

NSW Law Society Releases Future of Law and Innovation in the Profession Report
At the end of March 2017, the NSW Law Society has released their report to the Future of Law and Innovation in the Profession (FLIP) Inquiry. The report allowed the NSW Law Society to identify 12 key findings as well as 19 recommendations for future legal practice in NSW (03 April 2017). More...

In practice and courts

HCA Judgment summaries
5 April 2017 - In the matter of questions referred to the Court of Disputed Returns pursuant to section 376 of the Commonwealth Electoral Act 1918 (Cth) concerning Mr Robert John Day AO [2017] HCA 14. More...

NSW IPC Bulletin April 2017
In this issue: Access to audio visual information under the GIPA Act; Development of national metrics under the Open Government Partnership National Action Plan; Quick Guide to Your GIPA Act Responsibilities. More...

Local Court Bench Book Update 123 published
Update 123 to the Local Court Bench Book has amended the Mental Health chapter (04 April 2017). More...

ICAC: Prosecution briefs with the DPP and outcomes
Tables showing outcomes of ICAC-related prosecutions and briefs with the Director of Public Prosecutions Updated 3 April 2017. More...

Published – articles, papers, reports

Access to telecommunications data in civil proceedings
On 13 April 2017, the Government tabled a report in Parliament outlining the outcomes of a review of the restriction on civil litigant access to telecommunications data retained under the data retention scheme. The review concluded that sufficient evidence had not been received to sustain a recommendation that regulations be made to allow civil litigants to access the data. More...

Changing age profile of NSW offenders
NSW Bureau of Crime Statistics and Research: 3 April 2017
Examines the age profile of the NSW offender population with particular attention given to older offenders. More...

NSW recorded crime statistics 2016
NSW Bureau of Crime Statistics and Research, Derek Goh, Jessie Holmes: 3 April 2017
This report presents data on crime reported to, or detected by, the NSW Police Force from January 1995 to December 2016, with a focus on the statistical trends for the 24 months ending December 2016. More...

Cases

Turner v NSW Health Pathology, Forensic & Analytical Science Service [2017] NSWCATAD 114
ADMINISTRATIVE REVIEW - Government Information – validity of access application - reasonableness of searches – access to personal information - public interest considerations in favour of disclosure – public interest considerations against disclosure – personal information – balancing exercise – inconsistencies - allegations of impropriety and unlawfulness - request for referral to Minister – jurisdiction.

Monastirski v Independent Liquor & Gaming Authority [2017] NSWCATAD 115
ADMINISTRATIVE REVIEW – long-term banning orders from attending high risk venues in the Kings Cross and Sydney CBD Entertainment precincts – interpretation of sections 116AE and 116G of the Liquor Act 2007 (NSW)– protective and punitive purposes - considerations to be taken into account – – period of banning.

Dee Why Auto Clinic and anor v Roads and Maritime Services [2017] NSWSC 377
PRACTICE AND PROCEDURE – Judicial review of determination of Magistrate – Asserted error of law – Failure to give proper reasons – Where factual findings made as to breaches of relevant rules – Where no reasons were given for those findings – Where such findings were then used as the basis for a conclusion that the second plaintiff was not a fit and proper to hold such authorisation – Where no adequate reasons were given for reaching that conclusion – Where specific submissions were made by counsel to the Magistrate regarding the question of whether any breaches of the rules supported a conclusion of unfitness – Where the Magistrate failed to address those submissions and in doing so failed to engage with the issue before him – Error of law established – Proceedings remitted to the Magistrate to be further dealt with according to law PRACTICE AND PROCEDURE – Judicial review of determination of Magistrate – Asserted error of law – Evidence – Onus of proof in civil proceedings – So called Briginshaw standard – Whether Magistrate properly applied the onus and standard of proof – Standard of proof properly applied – Observations as to the nature of the Briginshaw standard.

Ross v Building Practitioners Board & Anor [2017] VSC 196
JUDICIAL REVIEW — Building Practitioners Board — Notices of inquiry into allegations against registered building practitioner — Amendments to principal Act — Abolition of Board — Transitional provisions — Whether inquiries commenced before commencement day of amending Act — Building Act 1993 ss 177, 178, 179, 179A, 180, 183 and 187; Building Legislation (Consumer Protection) Act 2016 ss 1, 2, 25, 59 and sch 8, cl 4.
STATUTES — Statutory interpretation — Amending Act — Transitional provisions — Whether inquiries commenced before commencement of new legislation — Legislative purpose — Whether interpretation would leave gap in regulation of builder's conduct — Building Act 1993 ss 177, 178, 179, 179A, 180, 183, 187; Building Legislation (Consumer Protection) Act 2016 ss 1, 2, 25, 59 and sch 8, cl 4.

Re Day [No 2] [2017] HCA 14
Constitutional law – Parliamentary elections (Cth) – Senate – Reference to Court of Disputed Returns – Where person elected and re-elected as senator – Where person stood to gain financially from Commonwealth paying rent under lease of person's electorate office – Where person's bank account nominated by lessor as bank account for payment of rent by Commonwealth – Where payment of rent reduced person's contingent liability as guarantor under loan facilities – Where person had prospect of receiving distribution of rent proceeds as beneficiary of discretionary trust – Whether person had indirect pecuniary interest in lease agreement with Commonwealth – Whether person incapable of being chosen or of sitting as senator under s 44(v) of Constitution – Whether vacancy should be filled by special count of ballot papers – Whether special count would distort voters' real intention.

CVM v New South Wales Department of Education, Early Childhood Education & Care Directorate [2017] NSWCATAD 108
ADMINISTRATIVE LAW – National Law - Education and care services – objects and principles of National Law – jurisdiction - service approval –- whether or not the service has commenced ongoing operation – breach of condition - cancellation or suspension.

Zonnevylle v Department of Education [2017] NSWCATAD 101
ADMINISTRATIVE REVIEW - Government Information – reasonableness of searches – reasonable searches – public interest considerations in favour of disclosure – public interest considerations against disclosure - prejudice to effective exercise of agency functions - expose a person to a risk of harm or of serious harassment or serious intimidation – balancing exercise - allegations of misconduct - failed to exercise in good faith - function conferred on officer – request for referral to Minister – jurisdiction PROCEDURAL FAIRNESS – application for disqualification - actual bias - apprehended bias.

DAB v Byron Shire Council [2017] NSWCATAD 104
ADMINISTRATIVE LAW – registration metered parking scheme operated by Council in Broken Bay – Council collected licence plate numbers at its parking meters – whether 'personal information' – whether collected for a lawful purpose directly related to an activity or function of the agency – whether reasonable necessary for a parking scheme - whether information collected by unlawful means – whether agency informed motorists that information was being collected, its purpose, or of the 'intended recipients of the information' – whether agency informed motorists that information was required by law or voluntary – whether agency informed motorists of its name and address – whether agency did everything reasonably within its power to prevent unauthorised disclosure

Legislation – New South Wales

Regulations and other miscellaneous instruments

Administrative Arrangements (Administration of Acts—Amendment No 2) Order 2017 (2017-141) — published LW 13 April 2017

Criminal Records Amendment (Historical Homosexual Offences) Regulation 2017 (2017-149) — published LW 13 April 2017

Administrative Arrangements (Administrative Changes—Public Service Agencies) Amendment Order 2017 (2017-128) — published LW 7 April 2017

Uniform Civil Procedure (Amendment No 84) Rule 2017(2017-130) — published LW 7 April 2017

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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Authors
Christine Jones
Kim Nguyen
 
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