QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Saunders v Department of Housing and Public Works [2022] QCAT 159	
PARTIES:	raymond saunders	
	(applicant)	
	V	
	department of housing and public works	
	(respondent)	
APPLICATION NO/S:	OCL049-20	
MATTER TYPE:	Other civil dispute matters	
DELIVERED ON:	10 May 2022	
HEARING DATE:	3 May 2022	
HEARD AT:	Brisbane	
DECISION OF:	Member Cranwell	
ORDERS:	The referral filed on 2 June 2020 is dismissed.	
CATCHWORDS:	HUMAN RIGHTS – PRIVACY LEGISLATION – where proceedings allege breach of privacy under the Information Privacy Act 2009 (Qld) – whether presumed time limit on request for referral of a privacy complaint to the Tribunal – whether Tribunal has jurisdiction to deal with referral where time limit not complied with – whether applicant requested referral of complaint as soon as possible
Acts Interpretation Act 1954 (Qld), s 38
Building and Construction Industry Payments Act 2004 (Qld)
Information Privacy Act 2009 (Qld), s 3, s 168, s 175, s 176, s 198
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 34, s 41, s 66
Valuers Registration Act 1992 (Qld), s 52
Ashtrail Pty Ltd & Anor v Council of the City of Gold Coast [2020] QCA 82
Attorney-General (Qld) v Australian Industrial Relations Commission (2002) 213 CLR 485
Ex part Austco Pty Ltd [1985] 2 Qd R 1
Re Conset Investments Pty Ltd [1992] 2 Qd R 244
Niclin Constructions Pty Ltd v Sha Premier Constructions Pty Ltd [2019] QCA 177
Valuers Registration Board of Queensland v Murphy [2021] QCA 159
Valuers Registration Board of Queensland v Neil Patrick Murphy [2020] QCATA 138	
APPEARANCES & REPRESENTATION:		
Applicant:	Self-represented	
Respondent:	N Harris, Crown Law	

REASONS FOR DECISION
[1]	The proceeding has come before me for the determination of the following preliminary issue:
Whether the time limit set out in s 38(4) of the Acts Interpretation Act 1954 (Qld), namely ‘as soon as possible’, applies to the time within which a complainant may request the Information Commissioner to refer a privacy complaint to the Tribunal upon being given advice of his or her rights to do so pursuant to sections 175(b) and 176(1) of the Information Privacy Act 2009 (Qld).
[2]	This is an important issue, as ss 175(b) and 176(1) of the Information Privacy Act 2009 (Qld) (‘the IP Act’) do not currently impose an express time limit for a complainant to ask the Office of the Information Commissioner (‘OIC’) for their privacy complaint to be referred to the Tribunal.  
[3]	For the reasons set out below, I have formed the view s 38(4) of the Acts Interpretation Act 1954 (Qld) (‘the AI Act’) does apply to a request by a complainant to refer a complaint to the Tribunal made under ss 175(b) and 176(1) of the IP Act.
[4]	Unless overturned on appeal, this decision may have several implications beyond Mr Saunders’ case.  The most immediate is that it may be desirable for the OIC in future matters to advise complainants that if they wish to request their complaint be referred to the Tribunal, they should make such a request as soon as possible.
[5]	Further, the OIC was given leave to intervene in this proceeding pursuant to s 41(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).  In its written submissions, the OIC noted:
(a)	the Department of Justice and Attorney-General, in its ‘Report on the Review of the Right to Information Act 2009 and the Information Privacy Act 2009’, recommended that the IP Act be amended to provide that a complainant has 60 days to request the OIC to refer a privacy complaint to the Tribunal; and 
(b)	the OIC had submitted to the review that a time limit of 12 months should apply.  
[6]	It may be desirable that the IP Act be amended to provide complainants with certainty in relation to the applicable time limit.  However, this is a matter for consideration by others.
Procedural history
[7]	On 2 June 2020, Mr Saunders filed in the Tribunal a Form 35: Referral of a matter (non-disciplinary).
[8]	The referral arises out of a letter from the OIC dated 14 June 2013. That letter relevantly stated:
Under section 176 of the IP Act, you can ask the Information Commissioner to refer your privacy complaint to QCAT for its hearing and determination.  You and Housing will be the parties to the hearing before QCAT.
You have indicated that you will be seeking legal advice prior to making a decision regarding referral to QCAT.  In the event that you choose to ask for your privacy complaint to be referred to QCAT, the information in the shaded area below will assist you.
[9]	The shaded area stated:
For the referral of your privacy complaint to QCAT, please find enclosed the relevant referral form (form 35).
To assist you, I have completed details in the form relating to names and contact details of the parties, the legislative basis on which the referral is to be made a summary of the matter referred …
Please return to the OIC: 1) the completed and signed ‘form 35’ and 2) all relevant attachments.
I note that QCAT require 3 copies of the completed and signed form (inclusive of the attachments) to be submitted along with the original.  I acknowledge that to meet QCAT’s requirement an extensive amount of documentation may require copying.  To assist you, and should you wish it, I have arranged for the OIC to make the 3 copies of the completed and signed form and attachments for you.
Once received, the OIC must submit your referral request to QCAT within 20 business days.
[10]	While it is not documented in the material before me, I have assumed that Mr Saunders asked the OIC to refer his complaint to the Tribunal within the 20 business days prior to the referral being filed.
[11]	Accordingly, the period of time between Mr Saunders being advised of his rights and when he requested the OIC to refer the matter to the Tribunal was at least 6 years and 10 months.
Legislative framework
[12]	Section 34 of the QCAT Act provides:
(1) This section applies if an enabling Act provides for the referral of a matter to the Tribunal.
(2) The referral must be made – 
(a) within the period provided for under the enabling Act; and
(b) in a way complying with the rules.
[13]	Section 175 of the IP Act provides:
The information commissioner must give written notice to both the complainant and the respondent for the privacy complaint advising— 
(a) that this part applies and why it applies; and 
(b) that the commissioner will, if asked by the complainant to do so, refer the privacy complaint to QCAT for hearing.
[14]	Section 176 of the IP Act in turn provides:
(1) The information commissioner must refer the privacy complaint to QCAT, if asked to do so by the complainant, within 20 business days after being asked to refer it.
(2) QCAT must exercise its original jurisdiction under the QCAT Act to hear and decide a privacy complaint referred to it under this section.
[15]	Section 198 of the IP Act relevantly provides:
(1) Anything done in accordance with this Act involving QCAT must be done in accordance with QCAT rules and procedures.
…
(3) In this section –
QCAT rules and procedures means the rules and procedures applying to QCAT under the QCAT Act.
[16]	Section 38(4) of the AI Act provides:
If no time is provided or allowed for doing anything, the thing is to be done as soon as possible, and as often as the relevant occasion happens.
Issues for determination
[17]	The issues before me are:
(a)	whether s 38(4) of the AI Act applies to a request by a complainant to refer a complaint to the Tribunal made under ss 175(b) and 176(1) of the IP Act; and
(b)	if so, whether Mr Saunders requested that his complaint be referred to the Tribunal ‘as soon as possible’.
Does s 38(4) of the AI Act apply?
Case law
[18]	The operation of s 38(4) of the AI Act was considered by the Court of Appeal in Niclin Constructions Pty Ltd v Sha Premier Constructions Pty Ltd.  The issue before the court was whether s 34(4) of the AI Act required the appellant to serve adjudication applications under the Building and Construction Industry Payments Act 2004 (Qld) (‘the BCIP Act’) as soon as possible.
[19]	Applegarth J (with whom Gotterson and Philippides JJA agreed) quoted Gleeson CJ in Attorney-General (Qld) v Australian Industrial Relations Commission as follows:
Acts of Parliament are drafted, and are intended to be read and understood, in the light of the Acts Interpretation Act. A particular Act, and the Acts Interpretation Act, do not compete for attention, or rank in any order of priority. They work together. The meaning of the particular Act is to be understood in the light of the interpretation legislation. The scheme of that legislation is to state general principles that apply unless a contrary intention is manifested in a particular Act.
[20]	His Honour went on to state:
One, however, is not concerned with an explanation for the absence of an express time requirement … The absence of an express time requirement presumptively calls for the application of the time requirement in s 38(4) [of the AI Act].  Therefore, what must be explained by [the appellant] is why the (presumed) presence … of a time requirement to act ‘as soon as possible’ is inconsistent with the [BCIP Act], which includes a variety of time requirements imposed upon a claimant, a respondent, the registrar and an adjudicator.  As discussed, the purpose of the [BCIP Act] does not support the submission that the requirement to serve an adjudication application upon a respondent should be subject to no time limit at all.
[21]	His Honour concluded:
A requirement to serve an adjudication application upon the respondent ‘as soon as possible’ is not inconsistent with the [BCIP Act’s] purpose or its terms.  It is consistent with the [BCIP Act’s] purpose of ensuring the expeditious resolution of disputes.  The interpretation contended for by [the appellant], which would allow a claimant to take as long as it likes to serve an adjudication application after lodgement, is unlikely to have been intended by Parliament, so as to displace the presumed application of s 38(4) [of the AI Act].
[22]	The operation of s 38(4) of the AI Act was again considered by the Court of Appeal in Ashtrail Pty Ltd & Anor v Council of the City of Gold Coast.  In that case, Morrison JA (with whom Mullins JA and Callaghan J agreed) held that s 38(4) could not be relied upon as a de facto limitation of actions defence to a claim for the recovery of money because s 10 of the Limitations of Actions Act 1974 (Qld) expressly deals with the time period for commencing a proceeding of that kind.
[23]	His Honour agreed with the view of the trial judge, who stated:
I am unable to accept that the operation of s 38(4) [of the AI Act] brings into force some form of a de facto limitation of actions defence. In this context, I agree with the submission made on behalf of the Council that as a matter of both construction and intent, the construction of s 38(4) does not create any legal limitation or bar to a proceeding of the type under consideration. In this context, it is also quite clear that the respondents are relying on s 38(4) as a defence for the “recovery of money”. In my view, in circumstances where s 10 of the Limitation of Actions Act 1974 specifically deals with “an action [in (contact or tort) for the recovery of a sum recoverable…” there is no scope for the operation of s 38(4) [of the AI Act] as contended for. As was submitted on behalf of the Council, insofar as proceedings of that nature are concerned, s 10 of the Statute of Limitations Act 1974 “covers the field”.
[24]	More recently, the operation of s 38(4) of the AI Act was further considered by the Court of Appeal in Valuers Registration Board of Queensland v Murphy.  The issue before the court was whether s 34(4) of the AI Act required referrals under s 52 of the Valuers Registration Act 1992 (Qld) (‘the VR Act’).
[25]	Section 52 of the VR Act is expressed in similar terms ss 175(b) and 176(1) of the IP Act.  It relevantly provides:
(1) Before taking action against a valuer under section 51, the board must give to the valuer written notice of its intention to take the action. 
(2) The notice must state – 
(a) the professional misconduct, incompetence or negligence alleged against the valuer; and 
(b) the facts and circumstances forming the basis for the allegations; and 
(c) a day, at least 14 days after the day the notice is given, by which the valuer may, in relation to the allegations stated in the notice— 
(i) make written representations to the board; or  
(ii) request the board to hear him or her; or 
(iii) require the board to refer the matter to QCAT. 
[26]	It was conceded by the Board that it had not made its referral to the Tribunal ‘as soon as possible’.
[27]	Mullins JA (with whom Sofronoff P and Bradley J agreed) noted:
It is apparent from the board’s submissions on the application to this court that it now accepts that s 38(4) of the [AI Act] applies to the board’s referral to QCAT, as a result of the election of a valuer under s 52(2)(c)(iii) that the board refer the matter to QCAT. That is an appropriate concession. As noted by the respondent, that concession means the board accepts that neither the Act nor the QCAT Act contains any contrary intention that would displace s 38(4) of the AIA applying the time frame for the making of the referral.
[28]	Her Honour went on to consider the effect of non-compliance with s 38(4) on the validity of the referral:
The requirement in s 38(4) of the [AI Act] is a general requirement that applies to the doing of an act under many different statutes and therefore in many different circumstances. Section 38(4) of the AIA does not itself deal with the consequence of non-compliance. It is a matter for construction of the legislation that regulates the doing of the act to which s 38(4) of the AIA applies to ascertain the consequence for the non-compliance with the requirement for the act to be done “as soon as possible”: Project Blue Sky at [91]. 
McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky (at [93]) favoured as the test for determining the issue of validity of an act done in breach of a statutory condition of asking ‘whether it was a purpose of the legislation that an act done in breach of the provision should be invalid’ and that, in determining the question of purpose, ‘regard must be had to the ‘the language of the relevant provision and the scope and object of the whole statute’.
[29]	Her Honour concluded:
The better analysis of the scheme under the [VR Act] for referral to QCAT in connection with the disciplinary process is that a breach of s 38(4) of the AIA does not invalidate the referral, but is a relevant matter on which the respondent can rely, if prejudiced by the delay in the referral or any aspect of delay in the disciplinary process before the matter is referred by the board to QCAT. The concern of the respondent for delays in the disciplinary process affecting his professional standing can be dealt with by QCAT that regulates its processes, including by striking out a proceeding pursuant to s 47(1) of the QCAT Act that is an abuse of process or pursuant to s 48(2)(a) of the QCAT Act on the basis that the board is acting in a way that unnecessarily disadvantages the respondent.
The right of appeal in Conset was an exercise of a private right conferred on Conset to challenge the order concerning the removal of the structure installed by Conset. The decision can therefore be distinguished on the basis that the referral by the board of the respondent’s matter to QCAT was an exercise of a statutory function in connection with a disciplinary process. Although Conset was concerned with the exercise of an entitlement to appeal that was found not to be implemented ‘with all convenient speed’ as the forerunner provision to s 38(4) of the AIA then required, I would not follow Conset to the extent that it is authority for striking out the appeal as incompetent merely because it was instituted without all convenient speed, without consideration of whether prejudice was caused to the respondent to the appeal, as a result of the non-compliance with the requirement under the equivalent to s 38(4) of the AIA.
[30]	For completeness, in Re Conset Investments Pty Ltd, the court considered the operation of the then s 38(5) of the AI Act, which provided: 
Where no time is prescribed or allowed within which anything shall be done, such things shall be done with all convenient speed, and as often as the prescribed occasion arises.
[31]	Ryan J stated:
Nobody is, of course, required to institute an appeal, though certain persons may do so.  But if a person exercises his entitlement to appeal, no time is prescribed by the Act within which the appeal is to be instituted, and s 38(5) is therefore applicable.
[32]	His Honour concluded that the appeal had not been instituted ‘with all convenient speed’ and was therefore incompetent.
Consideration
[33]	In applying the Court of Appeal’s reasoning in Niclin, Ashtrail and Murphy to the present case, I note that the objects of the IP Act are set out in s 3(1) as follows:
(a) the fair collection and handling in the public sector environment of personal information; and 
(b) a right of access to, and amendment of, personal information in the government’s possession or under the government’s control unless, on balance, it is contrary to the public interest to give the access or allow the information to be amended.
[34]	Section 168(1)(f) of the IP Act provides that the OIC may decline to deal with a privacy complaint, or part of a complaint, if:
12 months have elapsed since the complainant first became aware of the act or practice the subject of the complaint or part.
[35]	In my view, the objects of the IP Act, and the power to decline to deal with a complaint if more than 12 months have elapsed, are more consistent with a requirement to request a referral as soon as possible rather than allowing a complainant to take as long as he or she chooses to request the referral of a complaint.  Accordingly, I do not consider that the IP Act manifests an intention that s 38(4) of the AI Act should not apply, so as to leave the timing of a request for the referral of a complaint solely in the hands of the complainant to decide.
[36]	In considering the consequence of non-compliance with s 38(4) of the AI Act on the validity of a referral under the IP Act, I note that the decision of Mullins JA in Murphy related to a failure by the Board to make a referral ‘as soon as possible’ after being requested to do so by the valuer.  In the context of the IP Act, this would equate to the time taken by the OIC to refer the complaint to the Tribunal after being requested to do so by the complainant.  Accordingly, the decision in Murphy would have direct application only to the consequences of a failure by the OIC to refer a complaint within the express time limit of 20 days contained in s 176(1) of the IP Act.  That is not the issue in the present case.
[37]	Unlike the position of the Board in Murphy, when making a request to the OIC for referral to the Tribunal, a complainant is not exercising a statutory function for the public benefit.  Rather, a complainant is seeking to invoke a statutory right for the purpose of prosecuting a private interest.  In these circumstances, I consider that a complainant’s right to request the referral of his complaint to the Tribunal is more akin to the private right in Conset or Niclin.  In my view, where a request for the referral of the privacy complaint is not made in accordance with s 38(4) of the AI Act, the Tribunal’s jurisdiction to hear and decide the complaint is not enlivened.  
[38]	In reaching these conclusions, I have also had regard to s 48 of the Human Rights Act 2019 (Qld) (‘the HR Act’), which relevantly provides:
(1) All statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights.
(2) If a statutory provision can not be interpreted in a way that is compatible with human rights, the provision must, to the extent possible that is consistent with its purpose, be interpreted in a way that is most compatible with human rights.
[39]	In this regard, s 25 of the HR Act provides:
A person has the right – 
(a) not to have the person’s privacy, family, home or correspondence unlawfully or arbitrarily inferred with; and
(b) not to have the person’s reputation unlawfully attacked.
[40]	In my view, the imposition of a time limit on the request for a referral of a privacy complaint is compatible with s 25 of the HR Act.
Did Mr Saunders request referral of his complaint as soon as possible?
[41]	Turning now to the issue of whether Mr Saunders requested that his complaint be referred to the Tribunal ‘as soon as possible’.
[42]	In Ex part Austco Pty Ltd, Thomas J noted that the requirement of speed imposed by the previous wording of s 38 of the AI Act would depend on the circumstances of each case.
[43]	Similarly, in Niclin, Applegarth J noted:
The application of s 38(4) of the AIA creates a strict time for service, which still allows the exigencies of service confronting a claimant in the circumstances of a particular case to be considered.
[44]	In a submissions filed on 3 May 2022 and 3 December 2020, Mr Saunders set out in detail the factors as to why he was not able to make the referral request until May 2020.  They may be summarised as follows:
(a)	a chronic, incurable illness suffered since 1983;
(b)	chronic low income circumstances for over 30 years, due to illness;
(c)	profound and sustained difficulties accessing legal guidance, essential to making the referral request and negotiating the Tribunal proceeding in this matter involving complex law; and
(d)	two years in that period were taken up with two other complaints relating to his alleged breach of privacy – one to the Queensland Police Service in 2017 and another to the Minister for Housing in 2018.
[45]	While I have had regard to Mr Saunders’ chronic illness, income and difficulty in accessing legal advice, I respectfully do not accept that this explains the length of the delay in him requesting a referral of the complaint to the Tribunal.  The letter from the OIC dated 14 June 2013, set out above, makes it clear that the referral form had been pre-filled and required little more than Mr Saunders’ signature.  The OIC even made arrangements for the form and its attachments to be copied.
[46]	The fact that Mr Saunders was able to pursue other complaints in 2017 and 2018 suggests that he had the ability to request the referral of his privacy complaint, but choose instead to pursue other avenues of complaint.  There is a public interest in ensuring the finality of disputes, and Mr Saunders’ privacy complaint was not a matter he could simply come back to at a time of his choosing.  
[47]	Even giving Mr Saunders every benefit of the doubt, the magnitude of the delay compels me to find that Mr Saunders failed to request the referral of his complaint ‘as soon as possible’ after being informed of his rights to do so.
Extension of time
[48]	On 28 October 2021, I made the following direction:
Should Raymond Saunders wish to make an application to extend the time limit for starting a proceeding pursuant to s 61(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), Raymond Saunders will file in the Tribunal two (2) copies and give to the Department of Housing and Public Works one (1) copy of such an application, by: 4:00pm on 30 November 2021
[49]	No application for an extension of time was filed on or before 30 November 2021, or at any time.
[50]	Section 61(1)(a) of the QCAT Act provides:
(1) The tribunal may, by order – 
(a) extend a time limit fixed for the start of a proceeding by this Act or an enabling Act; …
[51]	As no extension of time was filed, it is unnecessary for me to consider whether s 61(1)(a) of the QCAT Act applies to the presumed time limit contained in s 38(4) of the AI Act.
[52]	I note that in Murphy, Mullins JA observed:
The time frame provided by s 38(4) of the [AI Act] applies where there is no time fixed for the doing of an act.  It is not a time limited fixed by the QCAT Act or the [VR Act].  It is therefore arguable that s 61(1)(a) cannot be relied on to extend the time under s 38(4) of the [AI Act] for the making of the referral to QCAT.  In order to dispose of the grounds of appeal, it is not necessary to express a concluded view on this aspect.
[53]	The contrary argument is that the time limit ‘as soon as possible’ is ‘fixed’, in the sense of being set in place, by the IP Act (the ‘enabling Act’) when read with the AI Act.
[54]	In the event that it is open to a complainant to apply for an extension of time, it seems to me that it would be relevant to consider the absence of any reference to a time limit in the written notice issued under s 175 of the IP Act.  However, as previously noted, that issue does not arise for determination in this case as no application to extend time was filed.
Disposition
[55]	For the reasons set out above, as Mr Saunders did not request referral of the complaint as soon as possible, the Tribunal has no jurisdiction in relation to his complaint.  It follows that the referral should be dismissed.
[56]	For completeness, I note that I asked at the hearing whether Mr Saunders sought a non-publication order pursuant to s 66 of the QCAT Act.  Mr Saunders indicated that did not seek such an order, and accordingly no order has been made.