AQO v Gregory Pearce MLC

reasons for decision 1This matter was commenced in the General Division of the Administrative Decisions Tribunal ("the ADT") pursuant to the Administrative Decision Tribunal Act 1997 ("the ADT Act"). On 1 January 2014, the ADT was abolished and its functions were taken over by the Civil and Administrative Tribunal of New South Wales ('NCAT'). The present decision is therefore a decision of NCAT. However, because the proceedings to which it relates are 'part heard proceedings' as defined in clause 6(1) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, they are to be determined as if that Act had not been enacted (see clause 7(3)(b) of this Schedule). 2The application was initially listed before Senior Member Molony, who conducted planning meetings and listed the matter for determination. However after the matter was reserved for determination, Senior Member Molony became unavailable. The President of NCAT determined to substitute the Senior Member for myself as permitted under section 52 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) and sought the parties' views in accordance with the provisions of section 52. 3The Registrar of the Tribunal wrote to the parties in respect of the proposed substitution. Neither party objected to me determining the matter. In the absence of any submission to the contrary, the Tribunal was reconstituted in accordance with section 52 (3) of the NCAT Act. 4Each of the parties has filed material in response to directions made by Senior Member Molony. I have considered the material provided by both parties. I have taken that into account even though I may not specifically refer to all of the material in these reasons. 5In these reasons the name of the Applicant has been anonymised so as to preserve the privacy of his personal affairs. The Applicant is referred to as AQO. I have also limited my discussion of the evidence in order to avoid the possibility that the Applicant's identity might be revealed. 6AQO is seeking review by the Tribunal under the provisions of the Privacy and Personal Information Protection Act 1998 ("the PPIP Act") in relation to alleged conduct by the Respondent ("the Minister") and the Health Records and Information Privacy Act 2002 ("the HRIP Act"). 7AQO applied for internal review of the conduct of the Minister in using and disclosing his personal and/or health information, and failing to check its accuracy. The specific conduct was described as follows: "Mr. Pearce produced, distributed and published a media release dated 23 April 2012 ... In that media release he provided a case study (Case Study One). The case study contains the unique details of my Workers Compensation claim. Those details are so specific that they have not been revealed to Mr. Pearce or the world at large and are not on the public record. It is alleged that Mr. Pearce has breached my privacy by: 1.Obtaining access to another entity (either WorkCover or CGU); and 2.Obtained access to private medical and dispute information relating to my claim; or 3.Used some other means to access information not freely available He has then used the information in a way that it was not intended to be used. In doing so he has breached my privacy." 8The Minister's Office declined to conduct an internal review on the grounds that the Minister was not a public sector agency. 9On 9 July 2013, the Tribunal made directions for the preliminary determination of the Tribunal's jurisdiction to hear and determine this matter where the Respondent is a Minister of the Crown. 10AQO submits that the Minister is a "public sector agency" within section 3(1) of the PPIP Act and section 4 of the HRIP Act because, at the relevant time, the Minister was "a person or body in relation to whom, or to whose functions, an account is kept of administration or working expenses." 11AQO submits that it is primarily, if not entirely, his health information that was used and disclosed by the Minister, so that it is the HRIP Act which applies. In JD v Medical Board (NSW) [2008] NSWADT 67 Higgins JM noted at paragraph [24]: In my opinion Parliament did not intent that an overly technical approach be taken when considering whether particular information was or was not "personal information" or "health information". The information should be viewed in its proper context and not necessarily dissected into parts or analysed in detail word for word. 12I agree with that view. 13At the time of AQO's application for internal review section 4(1) of the HRIP Act provided: "public sector agency means any of the following: (a) a government department or the Teaching Service, (b) a statutory body representing the Crown, (c) a declared authority under the Public Sector Management Act 1988, (d) a person or body in relation to whom, or to whose functions, an account is kept of administration or working expenses, if the account: (i) is part of the accounts prepared under the Public Finance and Audit Act 1983, or (ii) is required by or under any Act to be audited by the Auditor-General, or (iii) is an account with respect to which the Auditor-General has powers under any law, or (iv) is an account with respect to which the Auditor-General may exercise powers under a law relating to the audit of accounts if requested to do so by a Minister of the Crown, (e) the NSW Police Force, (f) a local government authority, (g) a person or body that: (i) provides data services (being services relating to the collection, processing, disclosure or use of personal information or that provide for access to such information) for or on behalf of a body referred to in paragraphs (a)-(f), or that receives funding from any such body in connection with providing data services, and (ii) is prescribed by the regulations for the purposes of this definition, but does not include a State owned corporation." "public sector official means any of the following: (a) a person appointed by the Governor, or a Minister, to a statutory office ..." 14At that time section 3(1) of the PPIP Act provided: "public sector agency means any of the following: (a) a government department or the Teaching Service, (b) a statutory body representing the Crown, (c) (Repealed) (d) a person or body in relation to whom, or to whose functions, an account is kept of administration or working expenses, if the account: (i) is part of the accounts prepared under the Public Finance and Audit Act 1983, or (ii) is required by or under any Act to be audited by the Auditor-General, or (iii) is an account with respect to which the Auditor-General has powers under any law, or (iv) is an account with respect to which the Auditor-General may exercise powers under a law relating to the audit of accounts if requested to do so by a Minister of the Crown, (e) the NSW Police Force, (e1) Service NSW Division of the Government Service, (f) a local government authority, (g) a person or body that: (i) provides data services (being services relating to the collection, processing, disclosure or use of personal information or that provide for access to such information) for or on behalf of a body referred to in paragraph (a)-(f) of this definition, or that receives funding from any such body in connection with providing data services, and (ii) is prescribed by the regulations for the purposes of this definition, but does not include a State owned corporation. 15Section 3(1) of the PPIP Act has subsequently been amended to include the following provision: "public sector agency" means any of the following: ... (a1) the office of a political office holder within the meaning of the Members of Parliament Staff Act 2013 , being the office comprising the persons employed by the political office holder under Part 2 of that Act, ... 16Alternatively, AQO submits that his internal review application should be construed so as to extend to conduct of staff of the Minister's Office, and that those staff members form part of a public sector agency, being a government department (within paragraph (a) of the definition of "public sector agency") or a body in relation to whom, or whose functions, an account is kept of administration or working expenses in accordance (within paragraph (d) of the definition). 17Mr McDonnell, on behalf of the Minister, contends that the task of statutory interpretation of the Act is to ascertain the ordinary and grammatical meaning of the words having regard to their context and purpose. He submits that the legislation is concerned with the conduct of public servants. A Minister is not expressly included in the definition of public sector agency and Mr McDonnell contends that had the Legislature intended to include the Minister it would have been easy for it to have done so. 18The question of whether the legislation applies to the Minister is one of statutory interpretation and the intention is to be gleaned from the object of the Act and statutory circumstances.