VZ v University of Newcastle (No 2) [2012] NSWADT 167

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: VZ v University of Newcastle (No 2) [2012] NSWADT 167 Hearing dates: On the papers Decision date: 13 August 2012 Jurisdiction: General Division Before: P H Molony, Judicial Member Decision: The Tribunal determines under s 55(3) of the Privacy and Personal Information Protection Act 1998 and s 63(3)(a) of the Administrative Decisions Tribunal Act 1997 to affirm the decision made on internal review. Catchwords: Privacy and personal information protection - amendment of personal information - collateral attack Legislation Cited: Privacy and Personal Information Protection Act 1998 Administrative Decisions Tribunal Act 1997 Cases Cited: Crewdson v Central Sydney AHS [2002] NSWCA 345 GA v The University of Sydney (GD) [2010] NSWADTAP 31 GA v The University of Sydney [2009] NSWADT 230 VZ v University of Newcastle [2011] NSWADT 245 Category: Principal judgment Parties: VZ (Applicant) University of Newcastle (Respondent) Representation: Surry Hills Legal Centre (Applicant) Hicksons Lawyers (Respondent) Privacy Commissioner File Number(s): 113207

REASONS FOR DECISION

Introduction 1In these reasons the names of private individuals, and other information which might identify them, have been anonymised so as to preserve the privacy of their personal affairs. 2VZ sought an amendment to his academic transcript from the University of Newcastle (the University) under s 15 of the Privacy and Personal Information Protection Act 1998 (the PPIP Act). The University declined to do so, resulting in him seeking an internal review an under that Act. Being dissatisfied with the result of the internal review, which found no breach of the PPIP Act and refused to make the amendment, VZ sought external review by this Tribunal. 3In VZ v University of Newcastle [2011] NSWADT 245 I found that in making his request for internal review VZ only sought to have successful completion of the subject ABOR3080 Indigenous Research: Lots of Questions inserted in his academic record. He had not sought an amendment of words already included in the academic record in his internal review request. As a consequence, the only issue properly before the Tribunal was whether or not VZ's academic record should be amended to show that he has successfully completed the subject ABOR3080, he says with distinction, in the first semester of 2004. 4The parties have agreed that the determination of that issue can be undertaken without a hearing, on the papers. While the Privacy Commissioner expressed concerns that evidence may be required in order to determine the issue, I am satisfied that the issues in dispute can be adequately determined in the absence of the parties, in the light of the written material and submissions.

The facts 5There is no dispute that by letter dated 11 December 2003 the University approved VZ's enrolment in a research degree, the Master of Social Science (Aboriginal Studies) commencing in September 1, 2004 The letter confirmed his proposed thesis topic, and advised which school within the University it would be undertaken in, as well as the names of his proposed supervisors. The letter contained the following passage: COURSEWORK REQUIREMENTS Course Code Course Title Semester Credit Points Grade ABOR3080 Indigenous Research; 1 10 Audit only Lots of questions

6In his statement VZ explained - 3. The letter of offer I received from the University dated 11 December 2003 indicated that a condition of my enrolment was "audit only' completion of a course of study ABOR3080 Indigenous Research Lots of Questions. 4. There was no explanation of the meaning of "audit only" in that letter. There was nothing attached to the letter that explained "audit only". I didn't think those words meant anything for me. It seemed to be administrative information. All I was concerned about was that I had to do the course. This letter is annexed and marked ANNEXURE A. 5. At no time following this letter, and while I was enrolled in the Masters Degree was I ever provided with an explanation of what an "audit only" unit was. 6. l attended the course ABOR3080 and was provided with the course overview and assessment requirements by the lecturer, Associate Professor Nerida Blair, Head of Wollotuka, School of Aboriginal Studies. The relevant extract from the Course Overview is annexed and marked ANNEXURE B. 7. At no time did she mention to me that 1 was only required to attend lectures. Infect, I was clearly advised by Associate Professor Blair that in order to fulfil the enrolment conditions for the Masters Degree, I had to complete all assessment tasks for this course, and obtain at least a Credit grade in the first assignment of ABOR3080. 8. I received the same impression from my thesis supervisor, Dr Wendy Hanlen, Umilliko Indigenous Higher Education and Research Centre, Wollotuka School of Aboriginal Studies, as Dr Hanlen also appeared to require me to complete the unit and its assessments. 9. Both Dr Hanlen and Associate Professor Blair on separate occasions marked assessments for the unit. 7VZ goes onto say that he successfully submitted required work in the subject ABOR 3080 as required by his nominated supervisors, which was marked. Most of his time in Semester 1 of 2004 was taken up with this subject. 8His academic record, dated 12 January 2012, does not show that he was enrolled in or completed that subject. It does show that in Semesters 1 and 2 of 2004 he was enrolled in Master of Social Science (Aboriginal Studies) undertaking the subject, "ABOR 9501 Research Thesis." 9As a research degree the Master of Social Science (Aboriginal Studies) was subject to the University's Rules Governing Master Degrees by Research ( the master's rules) Among other things the master's rules state that the degree is "an ungraded degree awarded for a significant contribution achieved through a program of advances study and research." Without permission, candidates for the degree are prohibited in enrolling for any other degree or award. Clause 4(2) of the master's rules provides that - Before approving an admission to candidature the Pro Vice-Chancellor (or nominee) may require the applicant to sit for such examination or carry out such work as the Pro Vice-Chancellor (or nominee) may prescribe. 10It is important to note that among the material before the Tribunal is a document headed School Recommendation - Research Higher Degree concerning VZ's enrolment in the Master of Social Science (Aboriginal Studies). It contains the signatures VZ's' proposed supervisors confirming their commitment to act as his supervisions. The document includes a space for "Coursework requirements to be completed." The words "Master of Social Science (Aboriginal Studies)" have been written in that space and then crossed out. Below it are the words, "Any other requirements?" Under this is written - Participate in ABOR 3080, Sem 1 2004. Does not have to enrol. 11The document was signed by the Assistant Dean (Research & Research Training) on 24 November 2003, approving the admission. 12When VZ was contemplating enrolling in another University in 2010 he requested a copy of his academic record from the University. On receipt, he noted the absence of a reference to his having been enrolled in, and completing ABOR 3080. He then commenced the process that led to the present proceedings. 13The University's position on the question of VZ's enrolment in ABOR 3080 is encapsulated in a letter, dated 31 January 2011, written to him by the Vice Chancellor in response to his initial complaint - As you have identified, and as you were informed in your letter of offer, ABOR3080 was an "audit only" course. As an audit only course, enrolment for this course was not required and you were not enrolled in the course. The School recommended your participation to the extent that it was deemed to be of benefit to your research degree. The extent, to which any student participates in an audit only course, is a matter of shared responsibility and consultation between the student and the University. There was no enrolment and subsequently no grade for ABOR3080. 14This, in effect, was the position adopted on internal review that led to the conclusion that there had been no breach of the PPIP Act. That is, in part, the position taken by the University now. 15VZ' position on the other hand in that the academic record held by the University contains his personal information and that, because it does not record that he was enrolled in and completed ABOR3080, it is inaccurate, incomplete and misleading. VZ argued that he participated in and fulfilled all the requirements of ABOR3080, and that his academic should be amended to show that he completed ABOR3080 in Semester 1 of 2004 with a distinction.

Consideration 16Section 15 of the PPIP Act relevantly provides - (1) A public sector agency that holds personal information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the personal information: (a) is accurate, and (b) having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to that purpose, is relevant, up to date, complete and not misleading. (2) If a public sector agency is not prepared to amend personal information in accordance with a request by the individual to whom the information relates, the agency must, if so requested by the individual concerned, take such steps as are reasonable to attach to the information, in such a manner as is capable of being read with the information, any statement provided by that individual of the amendment sought. (3) If personal information is amended in accordance with this section, the individual to whom the information relates is entitled, if it is reasonably practicable, to have recipients of that information notified of the amendments made by the public sector agency. 17In GA v The University of Sydney [2009] NSWADT 230 the Tribunal considered an application which, among other things, sought amendments to GA's academic record under the PPIP Act to show that he was enrolled in an MBBS degree. He made similar requests under the Freedom of Information Act 1989. At [48 to 52] I wrote - 48 It is apparent that for a number of years GA has been in dispute with the University and others with respect to the nature of his enrolment in the GMP, and whether he held an independent HECS place in the program or one contingent on his continued participation in the MRBBS. That dispute extends to the legitimacy or otherwise of the University's decision to terminate his enrolment in that program following his withdrawal from the MRBBS, and the termination of his scholarship contract. These issues have, in part, been the subject of Supreme Court proceedings between GA and the University which were settled with orders being made by consent. 49 It is equally apparent that in the present proceedings GA seeks to agitate, under cover of applications to amend under the PPIP Act and FOI Act, all these issues so that the University's records accord with his assertions as the facts of his enrolment in the GMP. The amendments and deletions he seeks would have the effect of rewriting the history of what occurred to concur with his view of those circumstances, rather than those of the University. They would show him as the holder of an ordinary, ongoing HECS place in the program, with any reference to an MRBBS place being deleted. Any reference to his enrolment being terminated would be withdrawn, and the records would be amended to show that he is presently enrolled in the Graduate Medical Program. Further GA is seeking consequential amendment to record held by other Agencies so that their records reflect the changes he seeks to make to those held by the University. 50 I have no hesitation in finding that in seeking to use the FOI Act to achieve these objects GA is mounting a collateral attack on the University, aimed at achieving remedies which should properly be pursued in other forums. 51 It is obvious that GA is seeking to use the FOI Act as a means of reviewing the totality of the University's conduct in relation to his enrolment in and termination from the GMP. I accept, as the University submits, that his primary goal in doing so 'is to be readmitted to the Graduate Medical Program.' The Court of Appeal in Crewdson v Central Sydney AHS [2002] NSWCA 345 said that the amendment provisions of the FOI Act are not a vehicle for the review of the 'merits or legality of the official action recorded in them.' Attempts to use them for such collateral purposes, the Court instructed, should be 'rejected.' 52 While no similar decision has been made with respect to the amendment of personal information provisions in s 15 of the PPIP Act, I think the principle in Crewdson equally applicable to s 15. 18On appeal in GA v The University of Sydney (GD) [2010] NSWADTAP 31 the Appeal Panel wrote, at [24-25] - 24 The amendment rights given by Privacy and FOI applications belong to the practical world of administration in regulated agencies. Here the regulated agency is a major university and the dispute goes to records of fundamental importance, student admission and enrolment records. GA does not himself dispute the University's understanding of the process the University engaged in and the accuracy of its records insofar as they follow from and are based on that understanding. In our view, concessions of this kind must bring to an end any debate as to accuracy and completeness in the practical world of a regulated agency. 25 GA's essential case is that he should have been treated differently, and, insofar as he was not, the University's conduct was invalid and unlawful. We agree with observations of the Member below, drawing in turn on the following remarks of Handley JA in Crewdson v Central Sydney AHS [2002] NSWCA 345 at [24]: 24 The appellant's attempt to use the Act as a vehicle for the collateral review of the merits or validity of official action should be rejected in any event. The Act is concerned with the accuracy of official records, not with the merits or legality of the official action recorded in them. Compare Re Resch and Dept of Veterans' Affairs (1986) 9 ALD 380, 386, 387 (Hall DP) and Hewitt v Grabicki [1986] USCA9 1380; 794 F. 2d 1373 (9th Circuit 1986), 1378. 19In VZ's case the University submits that what VZ is actually seeking is a review of the merits or legality of the fact that his academic transcript does not include an enrolment in, or record a grade for, ABOR3080. I agree with that analysis. 20VZ concedes that he was enrolling in a research degree, and that his letter of acceptance advised that ABOR 3080 was a coursework requirement on an "audit only" basis. It is clear that he participated in that course on that basis, although he says he did not understand what "audit only" means. It was not till early 2011 that he sought to raise arguments as to the accuracy of his academic record. 21The Macquarie Dictionary Online provides the following definition of the word audit - 5. to attend (lectures, classes etc) with official approval, not for credit and without obligation to d o the work of the course. 22Despite VZ's assertions that he did not understand the meaning of the words "audit only" their ordinary and usual meaning is clear. They meant he would not be entitled to credits for his participation on the course. VZ was offered and accepted his enrolment in the research degree on that basis. His academic record reflects that understanding. 23His attempt to question the accuracy and completeness of that record, when he agrees he participated in the course on the understanding it was audit only, must be rejected. Section 15 of the PPIP Act is a vehicle that enables individuals to ensure that their personal information held by agencies is complete, accurate and not misleading. It does not provide a backdoor means for individuals to call into question the validity, legality, merits or fairness of what is recorded. 24I add that the weight of the evidence persuades me that VZ's participation in ABOR 3080 was on an audit only basis. As consequence his academic record is accurate, complete and not misleading.

Conclusion 25In the light of these conclusion, the Tribunal determines under s 55(3) of the PPIP Act and s 63(3)(a) of the Administrative Decisions Tribunal Act 1997 to affirm the decision made on internal review.

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