JD v Department of Health [2005] NSWADTAP 44 | Case summary

REASONS FOR DECISION 1 This case concerns the interpretation and application of the Privacy and Personal Information Protection Act 1998 (the Act or the Privacy Act). 2 The Privacy Act regulates the conduct of public sector agencies in connection with the collection, storage, processing, use and disclosure of personal information. The standards are set out in ss 8-19 of the Act; and are described as Information Protection Principles (IPPs). These standards, subject to various exceptions and qualifications, must be observed by 'public sector agencies' in relation to 'personal information'. 3 The appellant (JD) is a registered medical practitioner. The respondent (the Department) is a public sector agency within the meaning of the Act. Following a request from the Medical Board, between 6 and 27 November 2002 the Department investigated aspects of his professional work. The report was given to the Medical Board on 3 December 2002. The Medical Board suspended him from practice on 19 December 2002. In April 2003, he applied under s 53 of the Act to the Department for review of its conduct. In June 2003 he applied under s 55 to the Tribunal for review of the Department's conduct. The Tribunal held a hearing on 28 April 2004. It delivered its decision on 8 October 2004, finding no contravention: see JD v Director General, NSW Department of Health (No. 2) [2004] NSWADT 227. 4 There was no dispute in this case that the information relating to JD in the report constituted 'personal information' about JD. 'Personal information' is defined as (s 4(1)): ' personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.' Background 5 By letter dated 4 November 2002, Ms Tadros, Legal Officer, Medical Board wrote to Mr J Lumby, Director, Pharmaceutical Services Branch (PSB), Health Department as follows (identifiers deleted): 'We refer to the abovenamed practitioner and advise that the NSW Medical Board and the Health Care Complaints Commission have recently received a number of complaints concerning [JD's] practice of medicine. Of particular concern to the Board is that the two most recent complaints, received in August and September 2002, raise concern, amongst other matters, alleging [JD] may be under the influence of drugs during the consultations with the patients. The patients allege, for example, that [JD's] speech was rapid, despite it being barely comprehensible, and that he could not sit still and that he was also breathing quickly. Given the Board's paramount duty to protect the public, the Board requests that the Pharmaceutical Services Branch conduct an urgent investigation into the prescribing practices of [JD], in order to ascertain whether he has been self-administering narcotics. We advise that [JD] practises at the following: [ - - - - - - - - - - ] [ - - - - - - - - - - ].' 6 The holding, storage and supply of drugs of addiction is strictly regulated by the Poisons and Therapeutic Goods Act 1966 (PTG Act) and the Poisons and Therapeutic Goods Regulation 2002 (PTG Regulation). Relevant provisions include s 29 of the PTG Act and cl 120 of the PTG Regulation. Self-administration of narcotics may constitute a breach of any authority held by a medical practitioner to hold and dispense drugs of addiction. It may also constitute an offence. JD held the required authority. 7 The powers of enforcement of the PTG Act are vested in inspectors appointed under s 42 of the PTG Act by the Director General of the Department. Mr Lumby assigned the matter to Mr Thomson, an officer of the PSB. His job title is Pharmaceutical Adviser. He holds an appointment under s 42 of the PTG Act as an inspector, which in turn permits him to exercise the various statutory powers vested in that office by the PTG Act. Mr Thomson commenced his task on 6 November 2002 and finalised his report by 27 November. 8 Mr Thomson collected the following information about JD from several sources: records held by the Department (prescribing records, in particular); records from pharmacies (prescribing records, in particular); oral information provided by pharmacies in the region where JD worked; and oral information provided by people for whom or with whom JD had worked. JD had regularly worked at night practices and his patients included people with drug addictions involved in methadone programs. 9 According to the Tribunal, Mr Thomson was satisfied at an early stage of his investigation that JD was not engaged in the self-administration of narcotics. However, he did find irregularities relating to the keeping of records. His conclusion was that these matters should be referred to the Board for consideration, as they may raise disciplinary issues. 10 The Tribunal described his principal conclusions in these terms: 'at the conclusion of his investigation, Mr Thomson formed the following opinions about JD from the material he had obtained: that JD was not self-administering narcotic drugs; that JD had committed some minor irregularities under the Poisons & Narcotic Drugs Act; that JD had failed to maintain appropriate records of his prescribing practices in respect of certain patients; that JD had supplied drugs of addiction to a number of patients he knew, or ought to have known, were on the methadone program; that the irregularities that had been committed under the Poisons & Narcotic Drugs Act were minor and should not be pursued, and that the other irregularities were of sufficient seriousness to refer to the Medical Board for the Board's attention;' 11 The investigation report included the following statements: (1) In spite of a thorough search, no evidence was uncovered to suggest that [JD] was having any prescription dispensed in his name. (2) However, there appears to be sufficient to suggest that [JD] supplied drugs of addiction to a number of patients he knew, or ought to have known, were on the Methadone Program. (3) There also appears to be sufficient evidence to suggest that [JD] failed to make records of: - Every consultation for patients in his care. - The medication he prescribed for patients in his care. - The dose, strength, quantity and the number of repeats he ordered on prescriptions he issued to patients in his care. - Adequate clinical notes to support his prescribing for patients in his care. 12 Mr Lumby received the report on 27 November 2002. He accepted the report's two recommendations: that there was nothing warranting further action by the Department; and that the report should be referred to the Board. As noted previously, the report was given to the Board on 3 December 2002. 13 The Board convened an inquiry under s 66 of the Medical Practice Act 1992. The hearing was held on 19 December 2002. The Board decided to suspend JD from practice on the ground of impairment. Among the material it took into account was the contents of the PSB report. JD was eventually permitted to recommence practice in August 2003, subject to various conditions. One was that he was not to hold an authority to dispense Schedule 8 drugs. Checking Accuracy 14 Section 16 of the Act provides: ' 16 Agency must check accuracy of personal information before use 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.' 15 JD has claimed that Mr Thomson contravened this standard in respect of statements made to him by the three former work colleagues. (In these reasons, we will use 'accuracy' as a compendious expression covering the words 'relevant, accurate, up to date, complete and misleading'.) 16 The three persons interviewed were: a man who had employed JD at two medical practices; and two women who had been medical supervisors at the respective practices. In the published reasons the names and practices are deidentified. The man is referred to as Witness A, and the practices are referred to as medical practices MA and MB. Ms A was the supervisor at MA, and Ms C supervisor at MB. JD was also concerned over Mr Thomson's collection of prescribing records from a Ms B, the supervisor of a pharmacy that had dealt with patients of JD. The pharmacy is referred to as PA. 17 Mr Thomson's diary notes and final report summarised his interview with Witness A in the form of eight dot points. JD challenges the last of the points which was negative to him. This is the statement attributed to Witness A that: 'At one stage he [Witness A] had had to modify the amount of Valium tablets held by the practice and distributed to doctors because of concerns that [JD] might have been supplying a male patient inappropriately'. 18 Witness A told the Tribunal that he had had a meeting with Mr Thomson at about the same time as the meeting regarding JD as to an unrelated matter not involving JD. His recollection was that he had made the above comments in connection with the other matter. 19 In the instance of Ms A one of the five points of Mr Thomson's record of interview was that: 'She had observed samples of 'uppers and downers' in the drawers of [JD]'s consulting rooms. She believed that they had been samples supplied by various manufacturers. She had no evidence to suggest that [JD] had either taken the medication or supplied it to patients.' 20 In the case of Ms C, one of the two points of his record of that interview was that: 'She had denied [JD] access to the drug storage because she was concerned that [JD] had many 'drug addict friends' and that samples had gone missing.' 21 JD had some weeks prior to the hearing requested leave from the Tribunal to issue summonses for the attendance of Witness A, Ms A and Ms C but that was denied. As it happened Witness A attended the hearing and gave evidence. He also challenged records produced by Ms B, and relied upon in the report. He said he had records which refuted them. He never produced those records. 22 The Tribunal dealt with Witness A's evidence and JD's claims that Ms A and Ms C had been misreported at para [49] of its reasons: '49 The area of contention is the extent to which the personal information about JD in Mr Thomson's investigation report was inaccurate, out of date, incomplete or misleading, and whether Mr Thomson was required to take any steps to ensure that this information was accurate and complete. In this regard I find that Witness A did not make the comment attributed to him in Mr Thomson's handwritten notes and report in relation to the storage of valium at medical centre MA. I also accept the evidence of Witness A that JD ceased working for that medical centre some months before Mr Thomson was conducting his investigation. I also accept Witness A's evidence that JD had not worked at medical centre MB since 1998, and that he ceased working there due to the acrimonious relationship between himself and Ms C. However, I do not accept that Mr Thomson's record of his conversation with Ms C is incorrect. Ms C was not called to give evidence and the Tribunal has not been provided with a copy of any letter or statement of Ms C that is alleged she forwarded to Mr Thomson. Indeed Mr Thomson states that he did not receive any such letter or statement.' Grounds of Appeal 23 A party's right to appeal is confined to questions of law, unless the Appeal Panel gives leave to extend the appeal to the merits: Act, s 56; Administrative Decisions Tribunal Act 1997, ss 112, 113. 24 In his notice of appeal and at hearing, JD stated that his only concern had been compliance with IPP s 16. He felt that the Tribunal had become unduly distracted by other issues. We have examined his original application for review, and the submissions filed by him before the Tribunal and those of the Department. It is clear, we consider, that the only matter in dispute was compliance with s 16. The Tribunal did not need to examine whether the Department's conduct had complied with s 17 and s 18 of the Act. 25 Accordingly we have confined our consideration of the question of this appeal to two areas: the Tribunal's reasoning as it relates to s 16; and the fairness of the Tribunal's hearing. However, as the Tribunal did give reasons relating to the interpretation of s 18, we have made some observations on its reasons in that regard. 26 JD filed 42 pages of hand-written submissions in addition to his notice of appeal. They are difficult, at times, to comprehend. He appeared at the hearing of the appeal, and at times became very angry and his oral submissions were, at times, also difficult to comprehend. It is apparent that he remains very hostile to the Department over the matters put in issue by his application. 27 The Department has filed detailed submissions in reply. Ms Thomas, Principal Solicitor with the Department, appeared on its behalf at hearing. 28 We have also had regard to the detailed written submissions made to the Tribunal; and to the submissions made to the Tribunal by the Acting Privacy Commissioner. The Acting Privacy Commissioner did not appear at the appeal. 29 Listed below are the points of appeal as we have identified them, in the order that they appear in JD's submissions: (i) that he had sought summons for two persons, Ms A and Ms C, to attend but they had been refused; (ii) that the evidence of the Department's inspector given to the Tribunal should not have been relied upon, as it was pure 'hearsay', i.e. it had not been corroborated by anyone that he had interviewed; (iii) that the Department failed to adhere to a commitment given at a directions hearing to produce as a witness at the hearing before the Tribunal, the Registrar of the Medical Board (Mr A Dix); (iv) that the Tribunal erred in law at para [79] of its reasons in rejecting the Privacy Commissioner's submissions that 'law enforcement' had a narrower meaning than that attributed to it by the Tribunal; (v) that it is an error of law to treat disciplinary action as involving 'law enforcement'; (vi) that it was irrational for the Tribunal to find that Witness A did not make the comment attributed to him in the inspector's report (that JD may have stolen or interfered with Valium at medical centre MA) but that IPP s 16 was nevertheless not contravened; (vii) that there was no rational basis for the conclusion at [49] that the inspector's record of his conversation with Ms C was not incorrect; (viii) failure to give probative weight to the (asserted) fact that the inspector acknowledged that part of his report was false; (ix) that the Tribunal erred in describing the purpose of the investigation as to investigate whether JD had breached the PTG Act. His assertion is that the Medical Board had merely asked the Department to investigate him for self-administration; (x) that the ultimate conclusion of the Tribunal (no breach of s 16) was irrational; (xi) that there was no evidence to support the statement in para [80] of the Tribunal's reasons that there is a long-standing agreement between the PSB and the Medical Board in respect of exchanging personal information that the respective agencies have collected and hold; (xii) that the Tribunal misunderstood the structure of the Department and also the nature of the disciplinary scheme. As to the latter it wrongly ascribed to the Board a disciplinary function when it is an investigator not a prosecutor; (xiii) that he was not given an opportunity to present his submissions at the hearing; (xiv) that he was not accorded a fair opportunity to scrutinise summonsed documents; (xv) that the Tribunal admitted large amounts of hearsay evidence; (xvi) that the procedures adopted by the Tribunal did not accord him natural justice; (xvii) further submissions relating to the unfairness of not having the evidence of Ms A and Ms C available, and the way inferences were drawn by the Tribunal in the absence of that evidence; (xviii) failure to accept Privacy Commissioner's submission on the meaning of 'use'; (xix) failure to have regard to various aspects of the evidence of the inspector. 30 There were other grounds of appeal going to the issue of costs and appropriate orders. 31 Some of the points of appeal went beyond the issues of the interpretation and application of s 16, and procedural fairness. They seek to respond to points made by the Tribunal in the course of its consideration of compliance with s 18. We do not, for the reasons given, regard them as properly within the scope of the appeal. 32 JD also applied for leave to extend the appeal to the merits. In line with the usual practice of Appeal Panels, we will look at that question once we have dealt with the alleged errors of law. We will detail the alleged errors more fully later in these reasons. Application of Section 16: Tribunal's Approach 33 'Use'. The question of when 'use' of the kind to which s 16 is addressed occurs in the handling of information in an administrative environment involves a judgement based on all the circumstances. For example, 'use' of the kind contemplated by s 16 had not normally been seen as occurring when an agency officer merely scrutinises or accesses information without taking any action on it. Referring to earlier Tribunal decisions, the Tribunal considered that 'use' involved the taking of some active steps in relation to information held by the agency; and endorsed the dictionary definition referred to in earlier cases, 'to avail oneself of; apply to one's own purpose, employ'. It held at [63]: '63 I find that Mr Thomson used personal information about JD that had been acquired from two sources namely, that which the PSB already held when he commenced his investigation and that which he obtained during the course of his investigation. Furthermore, he used this information to form his own opinions about JD and his practice as a medical practitioner. These uses are reflected in the report that Mr Thomson prepared. Accordingly, in my opinion, Mr Thomson's conduct in preparing his report was a "use" of personal information that the Department held about JD and Mr Thomson's conduct was subject to s.16 of the PPIP Act.' 34 It went on to consider whether Mr Lumby's examination of the report and the making of the decision to refer the report to the Medical Board involved a 'use' of the information. It said at [64]: '64 To describe Mr Lumby's conduct of approving the recommendations contained in Mr Thomson's report as a "use", in my opinion, is unnecessarily technical. He considered the report within days of having received it and then had it forwarded to the Medical Board. However, for the reasons set out in paragraph 61 and 62 above, in my opinion, the provision of the report to the Medical Board was not a "use" by the Department of personal information about JD, it was a "disclosure" by the Department to the Medical Board.' 35 In this regard the Tribunal rejected submissions from the Privacy Commissioner and JD that there was a 'use' of the report at this stage; and that the 'use' provisions covered decisions of the kind made by Mr Lumby. 36 Purpose. Section 16 requires the Tribunal to have regard to the purpose for which the information is proposed to be used. The Tribunal held at [68]: 'the purpose for which the Department had collected the personal information about JD was to investigate whether he had breached the Poisons & Therapeutic Goods Act 1996'. 37 Steps. As to what steps Mr Thomson had taken to check the contents of his report, the Tribunal found that he had taken none. It held at [48]: '… in preparing his report Mr Thomson did not take any steps to ascertain whether the information and opinions that he had obtained from persons he had spoken to and during the course of his investigation were correct, up-to-date, and complete.' 38 Reasonableness. As to what was involved in the assessment of what was reasonable in the circumstances, the Tribunal referred to the need for a more exacting approach when information that was damaging to the subject of the report was being compiled and used: '66 I agree with the submission of the Acting Privacy Commissioner that where personal information held by an agency is to be used for a purpose that is adverse to the interests of the person concerned, then s.16 of the PPIP Act places a higher threshold on an agency to ensure that the information is relevant, accurate, up to date, complete and not misleading. Although, in a general sense, I agree with the submissions of Ms Thomas that s.16 does not place an onus on an agency to research and investigate every aspect of personal information that it holds before it is used. However, the section does place an obligation on agencies, if seeking to use personal information that they hold, to consider whether steps (i.e. reasonable steps) need to be taken to check the accuracy etc. of that in formation before it is used and if steps do need to be taken to ensure that they are taken. 67 There is no dispute that Mr Thomson did not take any steps to ensure the accuracy of the information already held by the PSB and the information he obtained or recorded as a result of his investigation. Accordingly, the question is whether this was reasonable in the circumstances. In my opinion this question must be answered not only in the context of the purpose for which the information was to be used, but also in the context of those matters the applicant alleges the information was not relevant, inaccurate, out of date, incomplete or misleading.' 39 As to whether the steps were reasonable in the circumstances, the Tribunal said: '68 In this application, the purpose for which the Department had collected the personal information about JD was to investigate whether he had breached the Poisons & Therapeutic Goods Act 1996 . There is no dispute that the PSB had the relevant authority to conduct such an investigation. The investigation was conducted as a matter of urgency, given the nature of concerns that had been raised by the Medical Board. No issue arises as to the relevance or accuracy of the material already held by the PSB and used by Mr Thomson in his investigation. Accordingly, I will not consider this material any further for the purpose of determining whether the Department's conduct is a breach of s.16 of the PPIP Act. 69 The only matter in issue is the use Mr Thomson made of the notes he had made of conversations that he had with the various people he had spoken to in the course of his investigation. In my view, having regard to the urgent nature of the investigation and the fact that Mr Thomson quickly formed the view, from the information he obtained from the people he spoke to that there was no evidence that JD was self-administering narcotics, it was not unreasonable that he took no steps to verify what he had recorded in his diary and report of information he had received about JD was correct or complete. Had he formed a contrary view, Mr Thomson acknowledged that he would have gone back to these people and obtained a sworn statement. 70 Accordingly, in my view, notwithstanding my findings that in certain respects Mr Thomson's report was inaccurate and incomplete, Mr Thomson's conduct was reasonable in the circumstances, and there has been no contravention of s.16 of the PPIP Act.' Appeal as it Relates to the Interpretation and Application of Section 16 40 The importance attached by Parliament to s 16 is, we think, emphasised by the relative lack of exemptions from compliance with s 16 in the overall scheme of the legislation, as compared for example to the position that applies in respect of s 17 and s 18. In the case of s 17 (limitations on use) and s 18 (limitations on disclosure), there are numerous exemptions elsewhere especially in ss 23 and 24 relating to such public interests as the performance of law enforcement functions, the protection of the public revenue, the performance of investigative functions, and some other matters. 'Use' : 41 In the Act 'use' is differentiated from other activities such as 'collection', 'access' and 'disclosure'. Importantly the standards which apply to the 'use' of information are separated from the standards that apply to the 'disclosure' of the information. 42 We agree with the Tribunal that 'use' normally bears the connotation of employing information for a purpose. Mere access or retrieval would normally not be enough: see further, R v Brown [1996] 1 AC 543 (dealing with the term 'use' as found in the UK data protection statute). In our view, if an agency merely retrieves information in its possession and discloses that to an external person or body, there is no 'use' involved. The action is governed by the standards relating to the 'disclosure' of information. Similarly, there may be situations in which the agency 'uses' information and then 'discloses' the information. In such a situation, we agree with the Tribunal (at [62]) that both s 16 and s 18 (limitations on disclosure and any related exemptions) would apply. 43 We agree with the Tribunal that the first 'use' by the Department of the various pieces of information occurred when Mr Thomson brought all his records together and commenced to compile his report. He made findings of great significance in relation to their possible impact on JD. This was the critical 'use' of the information in the circumstances. Mr Lumby, in effect, simply adopted the work done by Mr Thomson. There was a 'use' of the information again when it fell to be considered by Mr Lumby. We would not go so far as the Tribunal did, and describe this use as merely 'technical'. 44 We agree with the submissions of the Privacy Commissioner (submissions to Tribunal filed 22 April 2004) that the mischief that s 16 is intended to address involves an agency taking action on the basis of information it holds about an individual and in a way which is adverse to the interests of that individual without taking reasonable steps to ensure the information is accurate and not incomplete, irrelevant, out of date or misleading. The Privacy Commissioner submitted, and we agree, that it is only possible to give effect to s 16 if use is interpreted as the process of considering, assessing or weighing up personal information so as to make a decision or adopt a further course of action. Purpose: 45 An overarching consideration in the scheme of this legislation is 'purpose'. 'Purpose limitation' and 'purpose specification' are key privacy protection concepts. Two important provisions in this regard are ss 8 and 10. Section 8 provides: ' 8 Collection of personal information for lawful purposes (1) A public sector agency must not collect personal information unless: (a) the information is collected for a lawful purpose that is directly related to a function or activity of the agency, and (b) the collection of the information is reasonably necessary for that purpose. (2) A public sector agency must not collect personal information by any unlawful means.' 46 Section 10 requires that the individual affected by a collection of personal information be made aware, to the extent practicable, of 'the purposes for which the information is being collected'. 47 Section 16 focuses on the purpose for which the information is proposed to be used. As to what the purpose(s) might be, s 17 is relevant. It provides: ' 17 Limits on use of personal information A public sector agency that holds personal information must not use the information for a purpose other than that for which it was collected unless: (a) the individual to whom the information relates has consented to the use of the information for that other purpose, or (b) the other purpose for which the information is used is directly related to the purpose for which the information was collected, or (c) the use of the information for that other purpose is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual to whom the information relates or of another person.' 48 Applied to this case and in light of the findings of the Tribunal in relation to claims made by the Department based on s 17(a) and s 17(c), the Department could have used the information for the purpose for which it was collected or a directly related purpose. Section 17 needs to be read in conjunction with other provisions that in effect permit further purposes. For example s 23(4) provides: '(4) A public sector agency (whether or not a law enforcement agency) is not required to comply with section 17 if the use of the information concerned for a purpose other than the purpose for which it was collected is reasonably necessary for law enforcement purposes or for the protection of the public revenue.' 49 Similarly, s 24 which deals with the position of investigative agencies (as defined in s 3 - the Department and the Board are not among the bodies referred to) provides: '(2) An investigative agency is not required to comply with section 17 if the use of the information concerned for a purpose other than the purpose for which it was collected is reasonably necessary in order to enable the agency to exercise its complaint handling functions or any of its investigative functions.' 50 As we have already noted, s 16's command is that an agency: '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.' (emphasis added) 51 Read together, s 16 must refer to the same principal purpose that s 17 refers to (i.e. the purpose of collection), and covers any other purpose permitted by the exceptions to s 17 (or granted elsewhere in the scheme of the Act, which could include directions approved by the Privacy Commissioner). 52 JD contends that the Tribunal erred in its approach to the question of purpose, and read it too widely. His submissions focused on the reference in the Tribunal's description of the purpose to the enforcement of the PTG Act. 53 JD referred to the terms of the request from the Medical Board: to investigate urgently his 'prescribing practices in order to ascertain whether [he] was self-prescribing narcotics'. 54 Eight of the thirteen substantive pages of the report are devoted to comparisons of records of prescriptions collected from pharmacies in the region as well as the drug register maintained by practice MA; together with critical observations on omissions from the records. The investigation at this point was engaged in a detailed examination of JD's prescribing practices especially as they bore upon patients who were known to the Department to be involved in methadone programs. The report deals with records from nine patients (eight of whom the Department knew to have been on the methadone program). Under the first patient, there are 14 specific comparative or specific examinations of records: for example, it is noted that there is an entry in the drug register on some occasions but no corresponding clinical record entry; on other occasions, there is no clinical explanation given in the record for the prescription; on some occasions there is an omission of a patient particular, for example an address; or there is an omission to inform a relevant authority of the prescription of a particular type of medication where reporting is required. Similar criticisms are found in respect of many of the records relating to the other eight patients. 55 This kind of inquiry seems to be typical of the way that the PSB deals with a request for assistance from a body such as the Medical Board. This is borne out by the affidavit evidence of Mr Lumby and Mr Thomson. The following extracts from the affidavits explain the functions and approaches taken by the PSB. 56 (a) Mr Lumby's explanation of the PSB's role and methods 4. The Branch is responsible for; inter alia , the administration of the Poisons and Therapeutic Goods Act 1966 and the Poisons and Therapeutic Goods Regulation 2002 , and the development of policies and guidelines to complement the legislation. The Branch ensures that medicines and poisons are appropriately available to the public and are stored, distributed, prescribed, used and supplied in accordance with legislative requirements. The Branch is responsible for minimising the harm from the use of medicines and poisons in the community through the development and implementation of appropriate regulatory initiatives. The Branch is also responsible for the administration of the NSW Methadone and Buprenorphine program for the treatment of opioid dependent persons, including the approval of medical practitioners to prescribe for individual patients. 5. The functions of the Branch include inspections and investigations to ensure compliance with the poisons and therapeutic goods legislation. Investigations and inspections include, but are not limited to, the investigation of alleged illegal, inappropriate or unprofessional supply, administration or prescribing of medicines and poisons and alleged self-administration of drugs for non-medical reasons by health professionals, including medical practitioners, dentists, nurses and pharmacists. 6. Part of my role as Director of the Branch is to supervise the conduct of pharmacists employed by the Branch, and to review reports and recommendations from those pharmacists, and recommend and oversee prosecutions and other regulatory mechanisms undertaken by the Branch pursuant to the poisons and therapeutic goods legislation. 7. From time to time the Branch receives complaints and information from members of the public, the HCCC, the NSW Medical Board, and other organisations outside the NSW Department of Health, which relate to health practitioners allegedly breaching the poisons and therapeutic goods legislation. It is customary for the Branch to investigate all such allegations. Once the investigation is undertaken, a report is compiled by the investigating pharmacist and is forwarded to me for my perusal if action other than a formal warning is required or there is some doubt as to the most appropriate course of action. 8. If the Branch obtains information, either through its investigations, or from an external source, relating to a breach of legislation which is outside the ambit of the poisons and therapeutic goods legislation, the information may be referred to the department or public sector agency which has carriage, regulatory powers and/or law enforcement powers pursuant to that legislation. For instance, if information is obtained relating to a possible breach of the Drug Misuse and Trafficking Act 1985, the information may be referred to the NSW Police Service for their consideration; and if information is obtained relating to a possible breach of the Medical Practice Act 1992, the information may be referred to the NSW Medical Board, for their consideration. The referral of this type of information to other public sector agencies only occurs if the matter to be addressed is of sufficient significance and the sharing of such information is reasonably necessary for the law enforcement purposes of government. 9. The referral of information and complaints relating to alleged breaches of legislation to public sector agencies with power under the relevant legislation is to ensure that the public is protected. For example it is possible that an investigation of a health professional may reveal breaches of the poisons and therapeutic goods legislation. However if I consider the breaches are secondary to, or as a result of, a more important issue, such as general competency to practice or impairment, the matter would be referred to the relevant registration board. Such boards have both the expertise and legislative mechanism to assess such issues. 57 (b) Mr Thomson's explanation of his role and methods, in both of his work capacities (Pharmaceutical Adviser and Inspector under s 42): 4. In my capacity as Pharmaceutical Adviser, I am responsible for: - Conducting regulatory work in relation to potential breaches of the Poisons and Therapeutic Goods Act 1966 and the regulations made under that Act ('the poisons legislation'); - Investigation of reports or complaints alleging professional misconduct or breaches of the poisons legislation by health professionals, wholesalers, manufacturers, and retailers. - Investigation of alleged self-administration of drugs by health professionals. - Conducting investigations in relation to potential breaches of the poisons legislation; - Monitoring, inspecting advising and reporting on the supply and use of a wide range of drugs and poisons including narcotics, anabolic/androgenic steroids and amphetamine precursor chemicals by manufacturers, wholesale distributors, pharmacists, nurses, hospitals, methadone clinics, rural produce stores, medical, dental and veterinary practitioners for compliance with the requirements of the poisons legislation. - Supervision of the destruction of drugs of addition under the provisions of the legislation at manufacturers, wholesale distributors, hospitals, pharmacies, medical; practices etc. 58 The PSB was entitled, as we read the PTG Act, to interest itself in the course of an investigation in matters of the above kind. For example, one of the powers given to an inspector in s 42 is: '(i) examine any records (including prescriptions), that may be relevant to investigating or auditing compliance with an approval given, or authority or licence issued, for the purposes of Part 4 or with respect to a prescribed restricted substance.' 59 Moreover, cl 76 of the PTG Regulation provides that a person must not issue a prescription for a drug of addiction unless authorised to do so by this clause. Sub-clause (2) provides that a medical practitioner may issue a prescription for a drug of addiction. Under cl 171 the Director General may restrict authorisations conferred by the PTG Regulation. 60 An agency with broad powers is not bound to confine an investigation triggered by a request to the terms of the request provided. It may widen the investigation to a broader purpose if it remains a lawful purpose of collection. 61 As we have noted the Tribunal saw the purpose for which the Department had 'collected personal information' as being whether 'to investigate whether [JD] had breached the Poisons & Therapeutic Goods Act 1996.' This is not the question that s 16 requires to be answered. 62 The question is what is the purpose or purposes for which the information is 'proposed to be used'. The Tribunal erred, we consider, in not making a finding as to the purposes for which the information affecting JD was proposed to be used. The question of accuracy is to be judged having regard to such a finding. 63 There is an error in the Tribunal's approach, though not of the kind suggested by JD. 64 In our view, it is clear that the Department embarked on a wider inquiry, and it was not precluded from doing that, given its functions under the PTG Act and as outlined by Mr Thomson and Mr Lumby in the above extracts. 65 There are some indications in the Tribunal's decision that it only saw as relevant to the assessment of accuracy those parts of the report as could be said to bear on the question of self-administration and possible prosecution of JD for offences; but not the balance of the material, as it was to be referred onwards and not 'used' by the Department. 66 Normally s 16 would apply to situations where the 'purpose for which the information is proposed to be used' relates to a matter where the agency is intending to take administrative action of its own in relation to the information. However, there may be cases where it is evident that the agency shares responsibility for certain functions with another agency. It may be that the 'purpose for which the information is proposed to be used' is a type of 'purpose' which the agency is itself not capable of fully executing. In the present case the evidence is that the PSB, quite understandably, undertakes functions and activities which relate to the maintenance of professional standards. In this instance the PSB was, effectively, the investigation arm of the Medical Board when it came to allegations relating to misuse of poisons and drugs of addiction. The purposes for which it uses information can include, as we see it, the purpose of providing investigative assistance to the Medical Board. In terms of s 17 this would constitute a purpose directly related to the purpose of collection. 67 In our view, the Tribunal should make a finding as to the purposes for which the information was proposed to be used, and assess the question of reasonableness of the steps having regard to that finding. 68 In this regard, we acknowledge that often there will be situations where the circumstances clearly indicate that all that is occurring in practical terms is a 'disclosure' of information which is not connected with any of the functions of the disclosing agency or any of its purposes. In such a case s 16 is not applicable. The requirements of s 16 apply when the recipient body (assuming it is an agency bound by the Act) uses the information disclosed to it. 69 Reasonableness of Steps Taken. As we have indicated a primary consideration in examining this question is what is the purpose(s) for which the information is proposed to be used. What is reasonable in the circumstances will vary with the significance of the purpose to which the information is to be put, and may be affected by the urgency of the situation. It may be that no additional steps are necessary, as the Tribunal concluded in this case. 70 Having regards always to 'the purpose for which the information is proposed to be used' the critical question is what steps were 'reasonable' in the circumstances. The circumstances will include, we think: (a) the gravity of the information, taking account of the context; (b) impact on the privacy and reputation interests of the subject and other possible impacts the information might have if it is wrong or defective in the ways referred to in s 16; (c) how recently the information was collected; (d) the experience and competence of the author of the information; (e) the significance of the information in the context; (f) the extent to which it was possible to check back the information with the providers of the information, or the subject; (g) whether check back is unnecessary, because for example, of the known reliability of the source system; (h) whether check back is impractical because of operational issues, such as time constraints or needs to do with maintaining the confidentiality of the process; (i) whether particular recording methods might have been used that militate against error (such as a tape recordings in an interview setting); and (j) whether there are other steps that may be taken before any final action is taken in relation to the information, and whether they are likely to occur soon. 71 There is, of course, no prescriptive list. The judgement to be made is one based on the particular circumstances. We have noted earlier the Tribunal's reasoning on these matters at [66-70]. It was open to reach the conclusion that no additional steps were required in the particular circumstances. It is not the role of the Appeal Panel to substitute its views for those of the trier of fact on determinations of fact, in the absence of an error of the kind explained in House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ. We would not have disturbed the decision, had this conclusion been the only matter in issue. 72 Nonetheless we note that in this instance, simple checking procedures or better recording procedures would, we think, have revealed the error on Mr Thomson's part in his notes of Witness A's statement. JD now claims there may have been errors in relation to the statements attributed to Ms A and Ms C. A simple check back procedure would have minimised the possibility of such a criticism. Procedural Fairness: Denial of Summonses 73 JD claims that he was unfairly denied the opportunity to produce relevant evidence from Ms A and Ms C. 74 In accordance with the practice and procedure of the Tribunal (see Practice Note 7, 8 May 2001, as revised), he did, as noted earlier, apply to the Registrar for issuance of summonses to attend in respect of Witness A, Ms A and Ms C. The Registrar consulted Judicial Member Higgins, who had been allocated the matter and had conducted the planning meetings, and constituted the Tribunal at hearing. In light of the Member's advice that the evidence was not, in her opinion, relevant, the Registrar refused to issue the summonses. The transcript of the day of hearing shows that JD renewed his request to have the summonses issued. TRIBUNAL: Can I just ask what evidence were you going to lead in your application? JD: What today? TRIBUNAL: Yes. JD: Do you mean as a sworn witness. TRIBUNAL: Have you got any witnesses? JD: I have only one witness who is [Witness A] who is sitting here. I did attempt to summons other witnesses and you didn't grant the summonses. TRIBUNAL: At the time I didn't think it was appropriate. If the need does arise it is something that we can deal with. JD: So there might be another hearing to the substantive matter, might there? TRIBUNAL: Well, let's see how we progress today. Ms Thomas, how many witnesses do you have? THOMAS: It depends on the evidence that is led by [JD] but I propose to have a maximum of three witnesses, depending on the way - it is still unclear as to what the nature of the allegation is and until I find out, but I do have three witnesses. TRIBUNAL: Who do you have? THOMAS: Registrar Dix from the New South Wales Medical Board to give very limited evidence. Mr John Lumby who is the Inspector's supervisor and the Chief Pharmacist for New South Wales Health, and he is to give limited evidence. But the main office [sic] obviously is Mr Kenneth Thomson who is sitting behind me. TRIBUNAL: I understand Mr Lumby needs to be elsewhere this afternoon. THOMAS: Yes, depending on how long the applicant takes in his case if I were to start-- TRIBUNAL: I'm not going to run the proceedings as his case and your case. THOMAS: If it transpires that I need Mr Lumby and Registrar Dix then I'm hoping to seek the indulgence of the Tribunal and interpose them because they are busy people and Mr Lumby has to leave for the airport at 2.30 to be on a plane at 4.00. 75 There is a further reference to the refused summonses at page 12 of the transcript in the course of questions being addressed by the Tribunal to Witness A: TRIBUNAL: Q. Do you know [Ms A]? A. Yes. She was our supervisor at the ..(not transcribable).. Q. Are you saying it's the same clinic that you were-- A. No, we run a house call service from our depot, like a clinic after hours ..(not transcribable).. JD: Do you recall you rejected my summons for [Ms A]? Do you recall I asked you to summons [Ms A], you rejected my summons. On that basis I ask you to allow the questions. [Witness A] has an intimate knowledge of the activities of [Ms A]. WITNESS: A. Not too intimate. TRIBUNAL: Q. Well maybe if you could just explain what your knowledge is of-- A. I think I ..(not transcribable)... JD: I need to ask him specific questions. TRIBUNAL: Yes, let's get a bit of background and then we could-- JD: If the Tribunal pleases'. 76 Given that the Tribunal allowed Witness A to give evidence, and then made findings favourable to JD's case based on that evidence, it is difficult to resist the conclusion that JD was wrongly denied the summonses he sought. 77 As noted earlier, the Tribunal rejected JD's claims as to what Ms A and Ms C said, accepting Mr Thomson's account and referred in that regard to the absence of any evidence from Ms A and Ms C. It made no reference to the attempts by JD to have summonses issued to procure their attendance, and no reference to its earlier view when denying the summonses that their evidence was irrelevant. 78 The findings at para [49] are unfair to JD. JD had sought the means to have Ms A and Ms C attend, and had been denied it. (JD also raised issues in relation to the records provided by Ms B, but he did not produce the contrary records he said he possessed. In these circumstances the Tribunal was entitled to reach the conclusion that there was no problem in relation to the use made by the Department of that information.) Whether to Set Aside the Tribunal's Decision on this Basis 79 In Stead v State Government Insurance Commission (1986) 161 CLR 141 the High Court (Mason, Wilson, Brennan, Deane and Dawson JJ) noted at 145: '…[n]ot every departure from the rules of natural justice at trial will entitle the aggrieved party to a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.' 80 As an example of a procedural error that would make no difference is denying a party the opportunity to make submissions as to law, which, had they been made, would have failed. The Court was more cautious as to the position where the denial went to matters of fact. The Court said at 145-146: 'Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially where the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice would make no difference. … It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at trial.' 81 In Stead plaintiff's counsel in a personal injuries case was prevented from making submissions as to whether the testimony of the doctor called by the defendant relating to causation should be accepted. The judge taken this course after giving an assurance to plaintiff's counsel that he did not accept the defendant's doctor's evidence. In his judgment published some time later the judge accepted the defendant's doctor's evidence. On appeal the Supreme Court (Full Court) of South Australia had not disturbed the judge's order, on the basis that the error would not have affected the outcome. 82 The High Court said at 146: 'We do not see how the Full Court, denied the important advantage of seeing and assessing the witnesses, could satisfactorily conclude that had the appellant's counsel been given a reasonable opportunity to present submissions on the issue, it could have made no possible difference to the result.' 83 In Re Refugee Review Tribunal and anor; ex p Aala [2000] HCA 57, (2000) 204 CLR 82 the High Court (McHugh J dissenting as to the conclusion to be drawn) applied the principle in Stead to set aside a decision of a tribunal to refuse a refugee protection visa when it had not, as promised, taken account of four statements bearing on the issue of whether the applicant was exposed to a real chance of persecution. Kirby J said at [131] (citations omitted): 'Once the applicable breach is proved, the victim of the breach is ordinarily entitled to relief. It is only where an affirmative conclusion is reached, that compliance with the requirements of procedural fairness 'could have made no difference' to the result, that relief will be withheld. This court has emphasised that such an outcome will be a rarity.' 84 Kirby J went on to emphasise that the tribunal had made a finding on the credibility of the applicant, negative to the applicant, without assessing the statements he had produced in his support. 85 Recent examples of the application of the principles in Stead in New South Wales include Peakhurst v Fox & Ors; Newton v Fox & Ors [2004] NSWCA 74 esp at [36-37] per Pearlman AJA (primary order set aside) J & K Clothing Pty. Limited v. Mahmoud [2004] NSWCA 207 (primary order set aside); Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 (primary order set aside); Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32 (primary order not set aside). There are numerous Federal Court cases, a recent example being Applicants M1015/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1309 (primary order not set aside). 86 Basten JA describes the inquiry to be made by the appellate court in this way at [160] of Seltsman: '[I]dentifying unfairness should involve identifying a loss of opportunity to deal with a material issue which tends against the interests of the complainant. That is a factual inquiry in relation to procedural steps adopted by the Tribunal. This complaint must demonstrate that unfairness, in a practical sense, has occurred in the particular circumstances of the case. This is quite different from asking whether, if the opportunity denied had in fact been provided, the result would have been different. If unfairness in the sense defined is established, it will be sufficient that the opportunity to present other evidence or argument could possible have affected the outcome.' 87 Clearly the present case does not involve a miscarriage of the seriousness of the examples in Stead and Ex parte Aala. But the standard set by Stead, is, as noted by Kirby J, an exacting one. Another way of making this point is that the standard involves a 'low hurdle' for the disadvantaged party to cross (per Basten JA at [160] in Seltsman). The standard is a protective one. On balance, we think that the refusal of the summonses resulted in a denial of procedural fairness in that the evidence might have affected the view the Tribunal reached on whether s 16 was satisfied. 88 In our view, the statement attributed to Ms A (relating to the keeping of uppers and downers), as the Tribunal noted, was a minor one viewed in the context of the understanding of people like Mr Thomson of the frequency of occurrences of this kind in the practice of medicine. The comment attributed to Ms C is clearly more serious. It implicates JD in conduct, which were it true, could be most damaging to JD's reputation and future career in medicine. Other Grounds of Appeal 89 One of JD's grounds of appeal concerns the lateness of provision of summonsed material to him on the day of the hearing by the Registry and the Tribunal. JD was informed on the morning of the hearing that certain summonsed documents were in the possession of the Tribunal. He went to Registry to inspect the documents after the hearing had ended, about 4 pm. The matter of access and further submissions was dealt with by the Tribunal. The Tribunal gave him seven days in which to have access to the summonsed documents and make any further submissions (transcript p 124). There is no error of law here. 90 We have dealt so far with the following grounds of appeal, as enumerated earlier in our reasons: (i) (denial of summons); (ix) (purpose of use); (xiv) (access to summonsed documents); (vi), (vii) and (xvii) (absence of evidence of Ms A and Ms C); (viii), (x) and (xix) (treatment of the error and the 'reasonableness' standard); (xviii) (meaning of 'use'). 91 In relation to the other headings, we make the following short comments as to four of the grounds: - as to (ii) and (xv), the Tribunal is obliged to have regard to logically probative evidence, it is not bound strictly by the rules of evidence and 'hearsay' is not inadmissible on that ground alone; - as to (xiii) and (xvi) (the general conduct of the hearing by the Tribunal), we have reviewed the transcript, and the proceedings were conducted satisfactorily. JD was given a reasonable opportunity to present his submissions, which were also the subject of several detailed written documents filed prior to the hearing. There was an error, as we have noted, in relation to the denial of the summonses. 92 We will deal with the issues raised under heading (iii) (the non-attendance of the Registrar of the Medical Board to give evidence) and the observations of the Tribunal in connection with its (unnecessary) consideration of the disclosure issues (see headings (iv), (v), (xi) and (xii)) in the next section of our reasons. Disclosure Issues 93 As we read the submissions before the Tribunal at first instance, much attention was given by the parties to whether the 'use' standard was applicable at all to the conduct of the Department, and then whether the disclosure that occurred to the Board, somehow, fell to be governed by the 'use' standards. It is clear, we consider, that the 'use' standards relate to intra-agency activity and the 'disclosure' standards to 'agency to agency' activity. 94 The operation of these provisions may be seen as complicated where the agencies belong to the same Ministerial portfolio. Agencies of this kind may have a history of close association with each other in pursuing portfolio objectives, as is seen in this case. Some recognition of the difficulties that the Privacy Act may create for information flows in this context is reflected in s 28(3) of the Act which provides: '(3) Nothing in section 17, 18 or 19 prevents or restricts the disclosure of information: (a) by a public sector agency to another public sector agency under the administration of the same Minister if the disclosure is for the purposes of informing that Minister about any matter within that administration, or (b) by a public sector agency to any public sector agency under the administration of the Premier if the disclosure is for the purposes of informing the Premier about any matter.' 95 We will not deal at length with the Tribunal's analysis of whether the Department's disclosure to the Board complied with s 18. As we have indicated, it does not appear to have been a matter that was in fact put in issue before the Tribunal. JD's focus was on compliance with s 16. 96 But as the Tribunal offered some interpretations of s 18 of the Act, and other possibly relevant provisions, such as s 23 and clause 2 of the Privacy Commissioner's Direction issued pursuant to s 41 of the Act dealing with Information Transfers between Agencies (revised version, 29 October 2002), we make the following observations. 97 Law Enforcement Purposes. This term appears in several of the exemption provisions in s 23 and in the exemptions found in cl 2 of the Direction. The Tribunal, without giving any detailed reasons, rejected what it saw as a narrow interpretation of these words proposed by the Privacy Commissioner in favour of what it saw as the ordinary meaning of those words. The Tribunal said at [79]: '79 In my opinion, the term "law enforcement" should be given its ordinary meaning and it should not be narrowly construed. …I am also of the view that disciplinary action, pursuant to an Act of Parliament, for breaches of professional standards comes within the term "law enforcement".' 98 Our provisional view is that the words 'law enforcement purposes' do not carry the broad meaning attributed to them by the Department and the Tribunal. The words, we think, bear the connotation, especially when considered within the context of this Act, of purposes relating to the conduct of policing or police-like functions. They have to do, we consider, with the operation of the criminal law and the enforcement of criminal offence provisions. They do not relate to the enforcement of the civil law or the law relating to the suspension from practice of medical practitioners on grounds of impairment (the function being exercised by the Medical Board). 99 It may be that the Tribunal regarded the Direction's reference to 'law enforcement purposes' as being wider than the meaning to be given to that term when it is used in the Act, see for example s 23(5)(a). In our view ordinarily the terms found in a Direction should be given the same meaning as they have in the Act. It should be assumed, unless it is plain from the words of the Direction that a contrary or different meaning is intended, that it uses terms found in the Act in the same way as they are used in the Act. A Direction should be interpreted in a manner consistent with the Act. It is a species of subordinate legislation. 100 There are, in our view, numerous pointers in ss 23 and 28 supporting the conclusion that what Parliament meant by the terms 'law enforcement' and 'law enforcement purposes', giving those words their traditional connotation, as purposes to do with the enforcement of those laws generally seen as part of the criminal law. 101 For example in s 23 [Exemptions relating to law enforcement and related matters] the exemption found in sub-s (2) is qualified so as not to reduce 'any protection provided by any other law in relation to the rights of accused persons or persons suspected of having committed an offence'. In sub-s (5) there are several specific exemptions, nearly all of which are connected to the enforcement of the criminal law. This concern for criminal law is seen again in sub-s (7) where the exemption applies - 'circumstances where there are reasonable grounds to believe that an offence may have been, or may be, committed'. 102 Our view that the Parliament had in mind a traditional understanding of 'law enforcement' is supported by the definition of 'law enforcement agency, in s 3 which only refers to major State and Commonwealth police and criminal justice agencies. (The most important of these agencies are given wide immunities from the provisions of the Privacy Act; these are mainly found in s 27.) 103 The objective of a provision like s 23 which covers all 'public sector agencies' was, as we see it, to give, to a lesser degree, similar immunities to other public service agencies in respect of those functions they undertake similar to those performed by mainstream law enforcement agencies. 104 This view is, we think, strengthened by an examination of s 24 of the Act, which deals separately with 'Exemptions relating to investigative agencies'. An 'investigative agency' is defined to include bodies such as the Ombudsman's Office, the Independent Commission Against Corruption, the Police Integrity Commission, the Health Care Complaints Commission and the office of Legal Services Commissioner. 105 It is significant, we think, that s 24 refers to the area of handling of complaints by investigative agencies in the spheres of health care complaints and complaints against the legal profession. The two bodies that have the most involvement in these fields are given special consideration, the Health Care Complaints Commission and the Office of Legal Services Commissioner. 106 The provision gives immunity for certain conduct in connection with the agency's 'complaint handling functions or any of its investigative functions' (see sub-s (2) re the use limitation principle, s 17); and allows disclosures of information between 'investigative agencies' which are unconstrained (see sub-s (3) re disclosure). (Section 28(2) already mentioned, provides another illustration of unconstrained disclosure, there between agencies when dealing with the portfolio Minister.) 107 These provisions reinforce our view that the Parliament sought to deal with care with the issue of the ease with which information relating to disciplinary or professional conduct matters could pass between agencies. Neither the Department or the Board were given any special status in this regard. It is unlikely, we think, that the reference to 'law enforcement purposes' was intended to cover disclosures of information in circumstances like the present. Further Procedural Fairness Issue 108 Evidence: JD also complained over the Department's failure to produce Mr Dix, the Registrar of the Medical Board, after they had indicated they would. The Tribunal later in the hearing (see p 71 of the transcript) dispensed him from attendance. In our view this was acceptable, as Mr Dix's evidence went to the operation of the following exemption in the Direction: · exchanges of personal information which are reasonably necessary for the performance of agreements (whether formal or informal) between agencies, and which agreements operated in the 12 month period prior to 1 July 2000 and have continued to operate since 1 July 2000 under the directions referred to in Paragraph 4 of this Direction". 109 Mr Dix's evidence was to be in elaboration of the following advice from him upon which the Department had relied: 'There has been a long standing understanding and arrangement between the NSW Medical Board and the Pharmaceutical Services Branch of the Department of Health whereby relevant information concerning medical practitioners and issues arising under the Poisons and Therapeutic Goods Act (formerly the Poisons Act) is shared. Relevant information is exchanged on the basis that the body receiving the information may have a responsibility to take appropriate information under its respective legislation.' 110 The Tribunal ruled on this issue as follows: '80 As mentioned in paragraph 33 above, there is a long standing agreement between the PSB and the Medical Board in respect of exchanging personal information that the respective agencies have collected and hold. However, the Tribunal has not been provided with a copy of a written agreement or details of any oral agreement that was entered into prior to July 2000.' 111 In this instance there was no injustice to JD as the Tribunal did not find the evidence relied upon sufficient to support exemption on the above basis. In any case, in our view, s 18 issues were outside the scope of the proceedings. Other Matters 112 Correction Rights: We note that there are alternative remedies available to JD to have these records rectified or, at least to have notations incorporated into them. They are available under ss 14 and 15 of the Privacy Act and ss 24 and 39 of the Freedom of Information Act 1989. Section 39 confers a right to have amended documents concerning the person's personal affairs if the information in the document is incomplete, incorrect, out of date or misleading. This and related provisions are well known. 113 The Privacy Act provisions were not under notice at the Tribunal's hearing. The Tribunal has found error in the records of the Department in relation to the comments attributed to Witness A. Clearly, JD has a claim to have the records amended, the diary notes and the final report, as they relate to the comments attributed to Witness A in light of the finding of the Tribunal. He also has a claim to have these amendments notified to the Medical Board: see s 15(3). 114 The Role of the Tribunal: We note that at para [63] of its reasons, the Tribunal saw its role as to 'review the decision' of the agency as reflected in its internal review report, and then to make the 'correct and preferable' decision in relation to the matter. This is not correct. The Tribunal is clearly not engaged in the review of a reviewable decision. What occurs in this area is that the agency makes an original decision on the action it will take or not take in relation to the complaint. Then the Tribunal makes an original decision going to the same matter, taking account of the agency's report. What occurs is a second external review of the administrative actions or 'conduct' of the agency. The process is one that is connected conceptually to the administrative law theory that underpins a Tribunal of this kind when dealing with cases involving citizens and government, in that it involves the 'review' of a species of administrative action being 'conduct' rather than a 'decision'. 115 There has, nonetheless, been some uncertainty as to whether the Tribunal can be said therefore to be governed, when hearing applications under the Privacy Act, by the provisions that relate to the making by the Tribunal of original decisions. This confusion stems from the description given by the Privacy Act to the task to be performed by the Tribunal - 'review of conduct' - and the presence of provisions in the Privacy Act which appear to assume that it is the provisions in the ADT Act that have to do with review of reviewable decisions that bear upon the procedures of the Tribunal in these cases. See further Sharp N 'The chameleon tribunal: The Administrative Decisions Tribunal of New South Wales' (2003) AJ Admin L 181 at 188; also, GR v Director-General, Department of Housing (GD) [2004] NSWADTAP 26 at [35]. It is not necessary to the present decision to dispose of this point. Conclusions 116 We have identified two errors that we consider justify having this application reopened on a limited basis. The first is the omission of the Tribunal in relation to identifying the purposes for which the information was proposed to be used, and the possible effect that had on its consideration of what, if any, were the reasonable steps to check accuracy in the circumstances. The second is the denial of the opportunity to JD to produce evidence from Ms A and Ms C. Leave to Extend to Merits 117 We do not think it necessary to extend the appeal to the merits. The matters that arise from this decision can conveniently and quickly be disposed of by the Tribunal below. We have noted JD's many statements that have attacked personally the presiding Member. We have seen nothing in the material to suggest any lack of objectivity on her part. The matter is remitted to the Tribunal as presently constituted. 118 There should be a short further hearing, limited to receiving evidence from Ms A and Ms C. Mr Thomson may need to be recalled, if anything arises from that the Tribunal considers requires a response; or to assist in the Tribunal in its further consideration of the s 16 issue. While it is a matter ultimately for the Tribunal, we see no difficulty in leaving it to the parties to make written submissions as to the purposes for which the information was to be used, and the relevance to the standard required by s 16 of any new evidence. Order 1. Appeal allowed. 2. Application remitted to Tribunal for redetermination.

JD v Department of Health

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