AQG v Crown Solicitor's Office

A change in the constitution of the Tribunal

1. Principal Member Higgins has become unavailable to determine the outstanding jurisdictional issues on the papers. As a consequence the President has determined to replace her with me. As required by section 52 of the CAT Act the parties were given notice of this intended change, but no objection was received.
2. I am satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the written submissions and other material provided to the Tribunal.

Issues requiring determination

1. The first issue requiring determination is whether the conduct AQG complains of is not subject to the PIPPA Act, in accordance with section 6(1), because it affects the manner in which a court or tribunal exercises its judicial functions.
2. The second issue concerns whether non-compliance with the majority of the information protection principles is authorised by section 25 of the PIPPA Act because the Government Information (Public Access) Act 2009 (the GIPA Act) and the Administrative Decisions Tribunal Act 1997 (as it then was) necessarily imply or reasonably contemplate such non-compliance.
3. Both of these matters require a determination of the Tribunal's jurisdiction under the PIPPA Act, without a determination of the facts in dispute. The facts as alleged by the applicant, as opposed to his conclusions about them, will be assumed to be correct for the purposes of determining the jurisdictional issues.

The nature of the conduct in issue

1. In response to direction 2(b) made by Deputy President Higgins in September 2014 AQG relies on parts three and four of the submissions dated 19 September 2014. Unfortunately, those submissions do not outline the specific conduct upon which AQG relies. Rather, they restate the remedies he seeks and why he considers the CSO responsible.
2. A perusal of the whole of the tribunal file, indicates that the controversy relates to AQG's appearance before the ADT in a planning meeting, in March 2013, as a McKenzie friend in proceedings brought by Nenad Vitas against the Secretary, NSW Treasury (ADT file no 133306). The Secretary, NSW Treasury subsequently made an application, supported by written submissions prepared by Ms Sato, that AQG "be restrained from representing the applicant and appearing further in these proceedings." Ms Kay Sato, a solicitor from the CSO, filed a statement in support of that application, dated 15 April 2013 in those proceedings in which she outlined a conversation she had with AQG before the planning meeting, and AQG's subsequent conduct in that planning meeting. She also filed submissions in support of Treasury's application in which she highlighted factors personal to AQG which she argued should prevent him representing Mr Vitas.
3. AQG disputes Ms Sato's account of the conversation she had with him before the planning meeting, and argues that the CSO's subsequent use and disclosure of that (he says false) information about him by the CSO to the ADT breaches the information protection principles in the PIPPA Act.
4. AQG alleges breaches of the following information protection principles: 1. The collection principle in s 11; 2. The data quality standard in s 16. 3. The use principle in s 17; 4. The disclosure principle in s 18.
5. While AQG has alleged a breach of the use principle in s 17, that is a bare allegation only, with no supporting factual basis provided by him. The facts outlined by AQG in his privacy complaint, and the accompanying letter, do not reveal any conduct which would constitute an internal use by the CSO of his personal information: Director-General, Department of Education and Training v MT (GD) [2005] NSWADTAP 77 at [39]. Rather, the focus of his complaint is on the collection and subsequent disclosure of what he considered to be "false, misleading, and incomplete" personal information about himself in ADT proceedings. The use he complains of is the disclosure. It follows that the facts alleged by AQG do not raise for consideration a breach of the use principle in s 17.
6. The data quality standard in s 16 provides: "A public sector agency that holds personal information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading."
7. In his submissions of 1 December 2015 AQG wrote with respect to s 16 - "The CSO has demonstrated a clear s16 breach of the PIPPA Act by wilfully filing submissions in Vitas v Treasury containing information they knew was false and misleading by their previous use of it. What AQG means by "their previous use of it" is unclear.
8. The Appeal Panel of the ADT has held that the data quality standard in s 16 does not require personal information to be checked before disclosure, whereas it does require checking before use of the same personal information: see Department of Education and Communities v VK (GD) [2011] NSWADTAP 61 at [30] and PN v Department of Education and Training (GD) [2010] NSWADTAP 59 at [31] and [35]. Because the facts alleged by AQG do not include anything that could be construed as a use (rather than a disclosure) of his personal information by CSO, there is no factual basis underlying the alleged breach of the data quality standard in s 16. Such an allegation must relate to a failure to check the accuracy of data before a use, not before a disclosure as is the case here.
9. As a consequence I will proceed on the basis that the conduct AQG is alleging could demonstrate a breach of the collection principle in s 13, and the disclosure principle in s18.
10. I should also note that AQG in submissions relied on alleged breaches of the NSW Model litigant Policy for Civil Litigation, and Premier's Memorandum 1997-26 Litigation Involving Government Authorities, to argue that the CSO was wrongly raising technical defences to his application. I do not accept this. Issues going to whether or not the Tribunal has jurisdiction to determine AQG's application for a review of conduct under the PIPPA Act go the fundamental question of whether the Tribunal has power to determine his application, and is not merely a "technical defence".

Parallel proceedings against NSW Treasury

1. AQG made a privacy complaint to NSW Treasury regarding the same conduct. He commenced proceedings against NSW Treasury in the ADT seeking a review of that conduct under the PIPPA Act (file no 13330). Ultimately, those proceedings were settled by the making of consent orders.

Material before the Tribunal

1. The parties have filed and served the following material: 1. The applicant's submissions filed 19 September 2014 in four parts including all attachments. 2. The respondent's submissions filed 2 October 2014 with attachments. 3. The applicant's submissions in reply filed 1 December 2014 with attachments.

The judicial functions issue

1. Section 6 relevantly provides - "(1) Nothing in this Act affects the manner in which a court or tribunal, or the manner in which the holder of an office relating to a court or tribunal, exercises the court's, or the tribunal's, judicial functions. (2) … (3) In this section, judicial functions of a court or tribunal means such of the functions of the court or tribunal as relate to the hearing or determination of proceedings before it,"
2. In submissions the CSO argued that while the case law in relation to the operation of s 6(1) "largely focussed on conduct by judicial officers", the judicial function of members of tribunals "extend to determining the manner in which proceedings" are conducted. The submissions continued - "8. The conduct about which the applicant complains is the use of information in filing and serving documents in proceedings before the Tribunal. It is not a novel proposition that persons who are called to be witnesses in legal proceedings might have differing recollections of certain events, and it is appropriate that those versions be the subject of evidence in the primary proceedings, and that the presiding member be permitted the opportunity of determining which is the preferable version of events. In the context of this case, the respondent's opportunity to challenge the evidence given by Ms Sato was in the primary proceedings in which her evidence (which gave an account of her recollections) and submissions (which incorporated that evidence) were filed. To mount a challenge to the evidence and submissions by way of the PPIP Act would, if successful, have the result that, in future cases, the Tribunal would be unable to receive any evidence or submissions from government litigants which gave an account of events disputed by the opposing patty. Given that the very essence of the adversarial system is dispute, such an outcome would be an impermissible fetter upon the judicial functions of the Tribunal. 9. In the related proceedings 133330 (which have now concluded), the respondent, NSW Treasury, filed and served submissions dated 25 July 2014, a copy of which is attached hereto. Those submissions also dealt with s. 6 of the PPIP Act at [32]-[36]. The respondent refers to and respectfully adopts those paragraphs."
3. The submissions in proceedings 133330 argued that: 35. Applying this analysis, the Respondent submits that evidence and submissions filed in the Tribunal in current proceedings "relate to the hearing and determination of proceedings before the Tribunal for the purposes of s. 6 of the PPIP Act. Such documents constitute professional communications with the Registry in the relation to the conduct of a current claim. As pointed out in NZ the efficient performance of the Tribunal's functions requires there to be a system for receipt of evidence (and submissions) concerning the issues to be determined by the Tribunal, in written form, in advance of a hearing. 36. The issue of whether the Applicant should be granted leave to appear as agent or McKenzie friend in proceedings no. 133306 was an issue for determination by the ADT, pursuant to the leave requirement under s. 71 and/or the general power in s. 73 of the ADT Act. If, by operation of the prohibition on disclosure in s. 18 of the PPIP Act, a party was prohibited from including personal submissions or supporting evidence filed in ongoing Tribunal proceedings on the question of whether a person should be given leave to appear as an agent or McKenzie friend, this would affect the manner of exercise of the Tribunal's judicial functions. It would limit the information which could be provided to the Tribunal on a disputed issue, in circumstances where personal information is clearly relevant to the determination of that issue, for the reasons set out above at (30]. By operation of s. 6, the Respondent submits that s. 18 cannot have that effect.
4. In LG v Attorney General's Department of NSW (2009) NSWADT 141 I had occasion to consider the meaning of "judicial functions" in s 6 of the PIPPA Act. I wrote - "24 What is encompassed within the concept of a court or tribunal's 'judicial functions' has been the subject of a number of earlier decisions in relation to the PIPP Act and the Freedom of Information Act 1989. In NZ v Attorney-General's Department [2005] NSWADT 103, the President considered the term in the context of s 6 of the PIPP Act. There the conduct in issue was the release by the Registrar of a Local Court of documents filed by an applicant for an AVO to other parties. He said, at [14 -18] "14 Section 6(1), to reiterate, provides that: Nothing in this Act affects the manner in which a court or tribunal, or the manner in which the holder of an office relating to a court or tribunal, exercises the court's, or the tribunal's, judicial functions.' The Department referred in its submissions to the structure of courts, and in particular s 10 of the Local Courts Act which provides for the office of registrar of a local court. The Tribunal is satisfied that a Registrar of a Local Court is the holder of an office of a court. 15 The conduct did not occur in Court, but involved access to files given at the counter by Registry staff. Does activity of this kind fall within the meaning of the 'judicial functions' of the Court? Section 6(3), to reiterate, provides relevantly that: 'In this section, "judicial functions" of a court or tribunal means such of the functions of the court or tribunal as relate to the hearing or determination of proceedings before it...'. 16 The Tribunal agrees with the Department's submission that the words 'relate to' have a broad meaning and denote a wide connection between the conduct of interest and the activity of hearing and determining proceedings: Tooheys Ltd v Commissioner of Stamp Duties (NSW) [1961] HCA 35; (1961) 105 CLR 602 per Taylor J at 620, 622; Our Town FM Pty Ltd v Australian Broadcasting Tribunal [1987] FCA 301; (1987) 16 FCR 465 at 479-480 per Wilcox J. 17 See also N (No 2) v Director General, Attorney General's Department [2002] NSWADT 33 at [32]- [33] where I dealt with a similar question, there involving a similarly-expressed immunity from review contained in s 10 of the Freedom of Information Act 1989. In that case there was an issue as to whether communications with the Registry from professional representatives were immune from the operation of the FOI Act on the basis that they were documents held by the Registry in the exercise of functions that 'relate to' the hearing and determination of claims. In that instance I ruled that professional communications of this kind 'are necessary to the efficient conduct of a claim, and fall within the scope ... of those functions that 'relate to' the hearing and determination of claims' (at [31]) (appeal dismissed, [2002] NSWADTAP 41). 18 This is a stronger case. The applicant's personal information is found in documents lodged with the Registry for use as evidence in support of her application for AVOs. The efficient performance of judicial functions depends greatly on there being a system for the receipt and organization of intended evidence in advance of the formal hearing of a matter. This system is commonly provided by a Registry under the direction of a Registrar. Decisions will frequently have to be taken by Registry officers as to the extent to which access is given to this material, ahead of hearing; or after the material has been dealt with at hearing, and has, possibly, become part of the evidence. The function of giving access to documents of that kind, and to the personal information they may contain, is one, I consider, that 'relates to' the exercise by the Court of its judicial functions. 25 On appeal from that decision the Appeal Panel in NZ v Director-General, Attorney-General's Department [2005] NSWADTAP 62 at [9] said: 9 The appellant disputed that the Registry is part of the Court. Whether or not the Registry is part of the Court is not the issue. Section 6(1) has the effect that nothing in the [Privacy Act] affects the manner in which the Registrar (or those acting on behalf of the Registrar) exercises the court's judicial functions. The Tribunal found at [14] that a Registrar of a Local Court is the holder of an office of a court within the terms of s 6. The appellant agreed with that finding. No error of law is disclosed. 26 On further appeal to the Supreme Court in Budd v Director, Attorney Generals Department [2006] NSWSC 1267 Bell J said, at [20]: ... The Plaintiff's complaint concerned the release of information containing personal details. There is no question of the PPIP Act applying to a court or the holder of an office relating to a court exercising the court's judicial functions. Once the actions of the registry staff were found to relate to the judicial functions of the court within the meaning of the PPIP Act, that was an end to the matter. There could be no question of the Tribunal exercising jurisdiction under that Act. For these reasons, the grounds that I have identified as paragraph [14] (a) and (b) do not establish error of law in the way the Appeal Panel determined the issue. 27 At [27] Bell J commented on the role of the Registrar of the Local Court: 27 The Registrar of a Local Court is, to my mind, plainly the holder of an office relating to the Local Court. The duties of the Registrar include the custody and control of documents filed in proceedings. Thus, provision is made in Pt 31.11 of the UCPR for the Registrar to produce to the Court any documents in the Registrar's custody that by notice in writing, any party to proceedings requests the Registrar to produce to the Court for the purposes of the proceedings. 28 More recently in HO v Attorney-General's Department [2008] NSWADT 224, the applicant sought external review of a decision, made under the Freedom of Information Act 1989 ("the FOI Act"), to refuse to amend a Certificate of Trial and Acquittal that had been issued by the Assistant Registrar of the District Court. The decision to refuse to amend the Certificate rested upon s. 10 of the FOI Act. That section relevantly provides: (1) For the purposes of this Act: (a) neither a court nor a person who is the holder of an office pertaining to a court shall, in relation to the court's judicial functions, be taken to be, or to be included in, an agency, and (b) neither a registry or other office of a court nor the members of staff of such a registry or other office shall, in relation to those matters that relate to the court's judicial functions, be taken to be, or to be included in, an agency 29 Deputy President Handley said, at [19] and [28]: 19 Pursuant to s 10(1)(a) of the FOI Act, the Assistant Registrar of the District Court, being a person who holds an office pertaining to a court, is not an agency' for the purpose of the FOI Act in relation to the District Court's agency' in relation to those matters that relate to the Court's judicial functions (s 10(1)(b)). ... 28 The District Court Act 1973 provides for the appointment of registrars and assistant registrars, whose functions are prescribed in the Act (see, for example, ss 18H, I, and J). Relevantly, in terms of the section 10(1) of the FOl Act, an assistant registrar is, in my view, clearly 'the holder of an office pertaining to a court'."
5. It is to be noted that following the replacement of the FOI Act by the GIPA Act information relating to the judicial functions of a court (which is defined to include a tribunal and its registry officers - see Sch 4 Interpretive provisions) is excluded information of an agency (Sch 2, cl 1) concerning which a valid application for access to information cannot be made.
6. The discussion of the meaning of judicial function in LG was adopted by Senior Member Montgomery in BCR v Consumer, Trader & Tenancy Tribunal [2014] NSWCATAD 79. That case involved the release, in error, by registry staff of the CTTT of BCR's personal information that had been filed in proceedings in which BCR was the applicant, to the respondent in those proceedings. In finding that release of the information took place in the exercise of a judicial function by a registry officer Senior Member Montgomery commented - "42. … what is relevant is whether there were proceedings before the CTTT that required "hearing" or "determination"; and whether the function that was being exercised is related to those proceedings. … 45. In my view, the provision of information relevant to the matter to be determined by the CTTT, to a party to the proceedings, is exercising a function relating to the judicial functions of the CTTT.
7. In the present case the difficulty that confronts the respondent, in arguing that s 6 applies to exclude the conduct in issue from the operation of the PIPPA Act, is that the conduct does not involve any exercise by the ADT or its registry staff of the Tribunal's judicial functions. Rather, what is involved is the preparation and filing of Ms Sato's statement and submissions in the ADT by the CSO on behalf of NSW Treasury. While the information contained in that statement may well be relevant to and relate to the judicial functions of the Tribunal (i.e. the determination by the Tribunal of whether AQG could Act as a Mackenzie's friend in an application for review under the GIPA Act) the evidence before me does relate to any conduct by the Tribunal or its officers involving the exercising of judicial functions with respect to AQG's personal information. Section 6 applies to the manner in which a court or tribunal exercises its judicial functions. The conduct under review here is not that of the Tribunal or its officers.
8. That, however, does not mean, that this Tribunal has jurisdiction to review the conduct in issue.

The section 25 issue

1. Section 25 provides: A public sector agency is not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 if: (a) the agency is lawfully authorised or required not to comply with the principle concerned, or (b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998).
2. In PN v Department of Education and Training (GD) [2010] NSWADTAP 59 the Appeal Panel considered whether the disclosure of PN's personal information to the employer's workers compensation insurer was 'lawfully authorised' (s 25(a)), or at least 'reasonably contemplated' (s 25(b)) by the workers compensation legislation. The Appeal Panel said - 54…, we do not think that the task required of the Tribunal in deciding whether or not s 25 is applicable requires it to go so far as to make a microscopic comparison of an alternative law to which an agency refers in justification. Section 25 is expressed in broad language. It is enough that 'non-compliance is reasonably contemplated' by the other law. 55 The Tribunal is called upon, as we see it, to consider the subject matter of the alternative law and ask itself, first, is this the kind of subject matter with which a relevant IPP is concerned in the circumstances of the case before it. 56 Necessarily, the workers compensation regime involves the management of personal information. Moreover, the workers compensation regime has detailed provisions allowing movements of information between a number of parties who have a business role in the management of workers' injuries and the determination of claims. 57 In our view, it is enough for s 25(b) to apply that the transactions in issue (here, one instance of indirect collection and otherwise disclosures) are of a type that is contemplated by the regime; and that they are genuinely undertaken for the purpose of the scheme. Whether something is 'reasonably contemplated' is a factual determination for the trial tribunal to make, only vulnerable to appeal as an error of law on narrow grounds, such as no evidentiary basis for the finding or because the finding is one no rational tribunal could make. This is clearly not a case of that kind. 58 If the Department has breached the guidelines or the statutory provisions in the way it carried out its obligations under the workers compensation regime, as PN's submissions suggest, those are matters to be dealt with through the complaints mechanisms that the workers compensation regime has. The breaches are not open to be litigated within the framework of the privacy legislation. 59 The Tribunal's task is simply to make a broad judgement as to whether s 25 applies. The protection given to an agency by s 25 is not lost simply because the agency has failed to comply, in some aspect of the detail, with a requirement of the other law. 60 If the strict view pressed by PN were to be adopted, privacy cases raising s 25 would give rise to a detailed collateral inquiry into whether the agency had strictly complied with the alternative regime. We do not think that the words of s 25 support such a conclusion, and engagement by the Tribunal in a collateral inquiry would defeat the evident purpose of s 25.
3. The respondent submitted that the GIPA Act and the Administrative Decisions Tribunal Act 1997 (the ADT Act) - as it then was - either necessarily implied or reasonably contemplated non-compliance with the PIPPA Act. As a consequence the CSO's conduct in defending proceedings under the GIPA Act for NSW Treasury, including its application with respect to AQG's status in those proceedings, cannot be the subject of a complaint under the PIPPA Act.
4. The respondent's position was put succinctly in para 30 of the submissions in file no 13330, which were adopted in this proceeding - "The subject matter of s. 71 of the ADT Act and r. 20A of the ADT Rules, insofar as they concern leave to be represented by an agent, is a potential agents competence to assist the relevant party and the Tribunal. The ADT case law concerning McKenzie friends … similarly requires the Tribunal to determine the effect of the friend's participation on the proceedings. That will necessarily involve consideration of information about the person whose participation as agent or friend is in issue. Such information must be provided by the parties (or, potentially the person) to the extent it is not already available to the Tribunal. This substantial is exactly what occurred in the present case when the Respondent filed the Submissions and Witness Statement in order to support its application for an order that the Applicant not be granted leave to act as agent or McKenzie friend."
5. In his response to these submissions AQG wrote - "The Applicant rejects out of hand that the respondents (sic) misconduct can attract s25 as the information they initiated about me was of their own volition, it was not at the Direction of the Honourable Tribunal inter alia no exemption can be contemplated for the respondent's misconduct."
6. Vitas v Secretary, NSW Treasury was an application for external review of a decision made under the GIPA Act. At the time when those proceedings were on foot s 100 of the GIPA Act gave an aggrieved person seeking access to information under that Act a right to seek external review of a reviewable decision in the ADT. The procedures applied by the ADT in hearing review applications were those provided for in the ADT Act and the Administrative Decisions Tribunal Rules 1998 (the ADT Rules) and the GIPA Act.
7. Section 73 of the ADT Act provided that subject to the Act and the Rules the Tribunal could determine its own procedure, was not bound by the rules of evidence, and could inform itself as it thought fit, subject to the rules of natural justice. Section 71 of the ADT Act was concerned with representation in proceedings before the ADT, including representation by an agent. It provided - "(1) A party to proceedings before the Tribunal may: (a) appear without representation, or (b) be represented by an Australian legal practitioner, or (b1) with the leave of the Tribunal given under subsection (2), be represented by an agent who is not an Australian legal practitioner, or (c) if the party is an incapacitated person - be represented by such other person as may be appointed by the Tribunal under subsection (4). (2) A person who is not an Australian legal practitioner may, with the consent of a party to proceedings, apply to the Tribunal for leave to represent the party as the party's agent in the proceedings or in part of the proceedings. (3) The Tribunal may: (a) grant or refuse leave on an application made under subsection (2), and (b) revoke any leave that has been granted. (3A) The rules of the Tribunal may make provision for or with respect to the following matters: (a) the circumstances in which it is, or is not, appropriate for the Tribunal to grant leave for an agent to represent a party, (b) the circumstances in which it is, or is not, appropriate for the Tribunal to revoke any such leave.
8. Rule 20A of the ADT Rules made specific provision with respect to the circumstances in which the Tribunal could grant leave for a person to appear as agent. Relevantly it provided - (1) This rule provides for the circumstances in which it is appropriate under section 71 of the Act for the Tribunal to grant, refuse or revoke leave for an agent to represent a party in proceedings, or part of proceedings, in the Tribunal. Note. Section 71 (3A) of the Act provides that the rules of the Tribunal may make provision for or with respect to the following matters: (a) the circumstances in which it is, or is not, appropriate for the Tribunal to grant leave for an agent to represent a party, (b) the circumstances in which it is, or is not, appropriate for the Tribunal to revoke any such leave. (2) It is appropriate for the Tribunal to grant leave to a person to represent a party as the party's agent in proceedings if the Tribunal is satisfied that the person has: (a) a sufficient degree of competence to provide effective representation for the party, and (b) the ability to deal fairly and honestly with the Tribunal and other persons involved in the proceedings. (3) It is appropriate for the Tribunal to refuse leave to a person to represent a party as the party's agent in proceedings if the Tribunal is satisfied that the person does not have the qualities referred to in subrule (2). (4) … (5) Nothing in this rule limits the matters that the Tribunal may take into account in deciding whether it is, or is not, appropriate for the Tribunal to grant, refuse or revoke leave for a person to represent a party as the party's agent in proceedings."
9. An important focus of the Tribunal's inquiry when considering granting leave for a person to act as agent for another in Tribunal proceedings was the putative agent's competence, and their ability to deal fairly and honestly with others in the context of the proceedings. Consideration of those issues will necessarily involve a consideration of information that is personal to that individual, i.e. their personal information.
10. In Vice-Chancellor, University of New South Wales v Curtin [2006] NSWADT 271 the Tribunal considered an application to appoint a McKenzie friend for an applicant in review proceedings under the Freedom of Information Act 1989 (the FOI Act). The President wrote - "41 The McKenzie friend has been described in these terms in Watson & Watson [2001] FamCA 1470 (Lindenmayer J): '2. … The case of McKenzie v McKenzie [1970] 3 All E.R. 1034 was to the effect that a litigant who appears before a Court in person is ordinarily entitled, if he or she so wishes, to have the assistance, in the Court, of a friend or assistant who may sit beside the litigant at the bar table for the purpose of taking notes, handling or cataloguing documents or exhibits, making quiet suggestions to the litigant as to how best to conduct the case, and generally being of assistance to the litigant in presenting his or her case to the Court, provided that that person does not disrupt the proper conduct of the proceedings. However, an important limitation upon the role and functions of a 'McKenzie friend' is that he or she may not (except, perhaps, in the most exceptional cases, and with the express leave of the Court) act as an advocate for the litigant in the proceedings. Collier v Hicks (1831) 2 B and ad. 663 at 669, 109 E.R. 1290 at 1292, and KT v KJ & TH (2000) FLC 93-032 at 87,509 cited.' 42 The Act allows a party to be represented by an agent: s 71(1)(b). Who may constitute an agent is left undefined. The term, as I see it, is a broad one, and is not limited to admitted legal practitioners. The existence of such a right to be represented by an agent does not, in my view, affect action by the Tribunal necessary to the orderly management and conduct of its business. Section 73 of the Act gives the Tribunal power, subject to the Act and the Rules, to determine its own procedures: s 73(1). This may, in my view, extend to not permitting a particular person to appear as an agent, or to limit the way in which a person appears as an agent. There is an express power in s 71(2) allowing the Tribunal to 'order that the parties to the proceedings before it may not be represented by an agent of a particular class for the purpose of the presentation of oral submissions to it (whether in relation to the whole proceedings or any part of the proceedings) if the Tribunal considers it appropriate to do so'. 43 The presence of s 71(2) in the Act shows a particular legislative concern with the possibility that the Tribunal may be affected in being able to do its work if it cannot discipline the presentation of oral submissions by agents. 44 There may be circumstances other than the presentation of 'oral submissions' where the Tribunal may wish to intervene; and I do not see that as inhibited by no express reference in s 71(2) to other circumstances. The general power given to the Tribunal in s 73(1) may still be invoked. 45 The Act makes no reference to the form of assistance given by a McKenzie friend. In my view, the Tribunal can permit participation of this kind in its proceedings. This is an aspect of the management of its procedures. 46 Allowing assistance of this kind is consistent with the access objectives that often underlie the creation of tribunals, and fits in with particular provisions of s 73, for example sub-s (4) which provides: '(4) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and (b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.' 47 It would be open to the Tribunal to permit as a 'measure' advancing these objectives allowing a party to be given assistance by a McKenzie friend. But it is not a right, and the introduction of such a person into the framework of the proceedings is to be approached with care. 48 Two of the more recent English cases are helpful for the consideration of an application to be assisted by a McKenzie friend: R v Leicester City Justices, ex p Barrow and anor [1991] 3 All ER 935 (CA, Lord Donaldson MR, Staughton LJ and Sir Christopher Slade); and R v Bow County Court, ex p Pelling [1999] 3 All ER 935 (CA, Lord Woolf MR, Brooke and Robert Walker LJJ). 49 In the Leicester City Justices case the Court of Appeal considered that there was no bar of any kind to an unrepresented party involved in civil proceedings being assisted by 'quiet and unobtrusive advice from another member of the public accompanying him as an assistant or adviser'. The Court of Appeal did not think that a court's inherent power to regulate its own proceedings extended so far as to exclude such a member of the public playing the role of assistant. On the other hand, the court might 'reasonably wish to know' that the litigant was to be assisted by an adviser and it could restrict the assistance of an adviser if there was evidence that Mr Curtin or the assistant might have had the intention of disrupting or abusing the process of the court. 50 Applying that thinking to the present case, Mr Curtin has a right, founded in procedural fairness considerations, to have Mr McGuirk assist him but it would be reasonable of the Tribunal to inquire what, if any, the role contemplated for Mr McGuirk would be. It would be open at that point to the other party or the Tribunal to raise any concerns it might have, for the purpose of considering whether to impose restrictions or prevent the arrangement from continuing. Applying the Leicester City Justices thinking therefore, the court or tribunal has a 'reverse leave' power, i.e. to withdraw from a party for cause the right to have an assistant present. 51 In the Bow County Court case the Court of Appeal did not, as I see it, go quite as far. It held that in public proceedings and non-private chambers proceedings, a litigant in person should be allowed the assistance of a McKenzie friend unless the judge was satisfied that fairness and the interests of justice did not require the litigant to have such assistance. As I see it, this formulation allows the question to be actively considered at the outset of the proceedings. However, the Court did make it clear that if the judge chose not to allow a litigant in person to be assisted in the way desired by the party, the judge should give reasons and emphasised that obligation to give reasons was owed to the litigant in person, not the proposed McKenzie friend. 52 The Court expressly distinguished private chambers proceedings. It referred to the intimacy of these proceedings and their avowedly confidential character. These considerations might militate against, or prevent, the attendance of any outsiders. While planning meetings in this Tribunal are open to be observed by the public, they do share many of the characteristics of private chambers proceedings. 53 The right of audience in the ordinary courts is confined to legal practitioners. Care is exercised in allowing persons other than legal practitioners to represent parties. The courts have two basic concerns: competence and unavailability of access to disciplinary sanctions if the non-lawyer agent engages in misconduct. See generally, Damjanovic v Maley [2002] NSWCA 230; (2002) 55 NSWLR 149. 54 Similar concerns can affect the decision whether to prevent a litigant in person being assisted by a McKenzie friend, and these concerns are not, in my view, confined to criminal proceedings. Street CJ referred in the context of criminal proceedings in R v E J Smith [1982] 2 NSWLR 608 at 614 to the way in which a McKenzie friend might subvert the trial process: '... - a person who may well, for one reason or another, be concerned to promote the case of the person whom he is advising by fair means or foul, by legal means or illegal, or by any device whatever, a person immune from disciplinary or effective control by the trial judge - is in my view fraught with the prospect of causing serious miscarriages in the orderly and regular conduct of criminal trials in this State'. 55 In my view there is a danger in any class of litigation - not just criminal trials - that the proposed McKenzie friend may be an agitator or promoter of a cause whose interests go beyond the mere giving of assistance to a friend in need on a particular occasion. In the Bow County Court case the proposed friend was a man who regularly rendered assistance to fathers in the family law courts, derived remuneration from this activity, and was the president of a fathers' rights group. Lord Woolf MR referred at 758 to the danger that such a person: 'will cease to conduct himself as an assistant and will indirectly run the case, using the litigant in person in the manner in which a puppet master uses a puppet. Such behaviour could provide a firm foundation for a judge not wishing him to be present as a McKenzie friend'. 56 In my view, therefore, the proper practice is for a litigant in person in the Tribunal to advise the Tribunal at the outset of the proceedings if he or she wishes to be assisted by a friend in the way contemplated for a McKenzie friend. The other party should be invited to indicate their attitude. The Tribunal should allow such assistance unless it has a well-founded concern that the participation of the friend might interfere with its ability effectively to conduct the proceedings. In that regard the nature of the proceedings will be relevant (different considerations may apply as between, for example, preliminary proceedings in the nature of case conferences or planning meetings and the formal hearing itself). 57 In the present circumstances, there could, I feel, be no objection to Mr Curtin or any litigant in person having the assistance of a person who conducted himself or herself in a quiet and unobtrusive way and had a detached relationship to the issues in controversy and to the other party to the proceedings. 58 However here, Mr Curtin has proposed as the McKenzie friend a person who is an active litigant in the Tribunal against the same respondent and is regularly dealing as a party in other proceedings with the respondent's legal representatives and FOI officers. There is a real risk that an assistant of this kind will engage in conduct of the kind to which Street CJ and Lord Woolf MR alluded. The planning meeting process is one which seeks to see to what extent a matter can be resolved without going to formal hearing. The introduction into the process of a person who is involved in direct litigation of their own against the opposite party is not conducive, as I see it, to the effective use of the planning meeting procedure.
11. In Vitas v Secretary, NSW Treasury the CSO made an interlocutory application to the Tribunal seeking orders to the effect that AQG not be allowed to act as a agent or McKenzie friend for Mr Vitas. Vice-Chancellor, University of New South Wales v Curtin establishes that the ADT had the power to entertain such an application, and make orders not permitting a person to act as a McKenzie friend, in accordance with its general power to regulate its own procedures (s. 71(1) of the ADT Act). In considering such an application factors personal to the person proposing to act as McKenzie friend can be considered.
12. The law relating to the use of McKenzie friends and agents in ADT proceedings necessarily implies that non-compliance with the PIPPA Act will occur, and is reasonably contemplated, where the Tribunal is determining whether to refuse to permit a person to act as a McKenzie friend or to approve a person acting as agent for a party. It is reasonably contemplated that when making such an application, evidence concerning the suitability of an individual to act as a McKenzie friend or agent in nominated proceedings will be relied on by the parties and considered by the Tribunal. The need for the Tribunal to consider evidence of that nature, in determining whether a person should act as McKenzie friend or agent, necessarily implies non-compliance with the PIPPA Act, so that the Tribunal can consider personal information going to those issue.
13. As a consequence s 25 of the PIPPA Act provides that the agency (CSO) was not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 of the PIPPA Act. To attract that exemption, the information does not have to be provided at the direction of the Tribunal, as AQG argued, but may be provided by a party of its own volition in the course of usual procedures.
14. As the facts alleged by AQG in his privacy complaint raise for consideration alleged breaches by the CSO of s 13 and 18 of the PIPPA Act, AQG's application for review must be dismissed for want of jurisdiction. In the circumstances the CSO was not required to comply with either of those provisions.

Orders

1. The Tribunal orders that this application for review be dismissed for want of jurisdiction. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 June 2015