REASONS FOR DECISION
1 This is an appeal under the Privacy and Personal Information Protection Act 1998 (the Privacy Act) by GR against the Tribunal's decision in GR v Department of Housing [2003] NSWADT 268. GR is a public housing tenant in housing managed by the Department.
2 GR put in issue three items of conduct by the Department relating to the handling of personal information about him: alleged unlawful disclosure by a Departmental officer, alleged unlawful disclosure by a Departmental contractor, alleged unlawful retention of personal information. The Tribunal found that the Department had breached the Privacy Act in respect of the first matter, but found the case not sustained in relation to the other matters. In relation to the conduct the subject of an adverse finding, the Tribunal refused GR's application for monetary compensation made pursuant to s 55 of the Privacy Act. The Tribunal determined that 'no further action' was required by the Department.
3 GR appeals against the refusal to award monetary compensation. He also appeals against the Tribunal's findings in respect of the other two items of conduct. The Department is the respondent to the appeal. It has not appealed against the finding of liability.
4 GR has appeared in person throughout, without legal representation. Appeals to the Appeal Panel are governed by s 113 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) which relevantly provides:
'(2) An appeal under this Part:
(a) may be made on any question of law, and
(b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.'
5 GR is not familiar with the distinction between questions of law and questions of fact. His submissions at the appeal hearing ranged over both areas. We are not satisfied that his submissions raised any possible errors of law in relation to the Tribunal's reasons for finding that the second and third items of conduct complained of did not contravene the Privacy Act. In our view, he simply disagreed with the Tribunal's findings on the evidence. Nonetheless we will briefly deal with his submissions on these matters later in these reasons.
The Unlawful Disclosure
6 GR had called a well known radio talkback program and spoken to the producer (Ms Fowler). He complained over a dispute he had with the Department over the removal of a screen door in December 2001 from his home unit. The producer spoke in turn to the media liaison officer of the Department (Mr Maher). He obtained information about GR from another Departmental officer. He (Mr Maher) described GR as a 'troublemaker' and referred to the screen door dispute (GR was at the time pursing a case in the Supreme Court over that) and an earlier incident in 1999 relating to signs in the front garden of the house that he had then occupied. In light of that reply the producer decided not to put GR's complaint to air. The Tribunal found:
'10 Mr Maher then telephoned Ms Fowler and told her that the screen door matter was before the Supreme Court and that the Department knew the applicant very well. He explained to her the history of the screen door incident and, in response to Ms Fowler's question "why is he so obsessed with the screen door?" He said:
'He is a known troublemaker and it goes back to previous tenancies. Before he was in [his current suburb] he lived in [a previous city]. I am told he displayed publicly visible signs that contained rude and offensive words. Complaints were lodged by neighbours to council and council asked the Department of Housing as landlord to have the signs removed. This is why he feels the Department of Housing is harassing him.'
11 Ms Fowler stated that as the matter was still before the Court, she would leave it at that.
12 Mr Maher explained in his affidavit that he said what he did to Ms Fowler because he considered that as the signs were public in nature, the applicant could have no real objection to the descriptive nature of his statement.'
7 GR learnt of the contact between the media liaison officer and the radio producer when she called him back, explained that she had spoken to the Department, and that she would not be running the story. GR said that this incident had contributed to his present level of stress.
8 The Tribunal found that the Department had contravened Information Protection Principle (IPP), s 18 (Limits on Disclosure of Personal Information). In the case of this Department, the disclosure of personal information about a tenant is prohibited save for cases where the tenant has given express consent (see s 26(2)) or one of the other humanitarian or public interest exceptions contained in the Privacy Act is applicable (see for example, the exceptions found in ss 18 and 26(1)). In this instance the Tribunal found that none of the exceptions applied.
9 The Tribunal decided to take 'no further action', a course permitted by the Privacy Act.
10 As relevant to this case, s 55 provides:
'(2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders:
(a) subject to subsections (4) and (4A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct,
…
(4) The Tribunal may make an order under subsection (2) (a) only if:
(a) the application relates to conduct that occurs after the end of the 12 month period following the date on which Division 1 of Part 2 commences, and
(b) the Tribunal is satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency.'
11 GR applied for $20,000 compensation for psychological harm. The Tribunal dealt with this matter at para [45]:
'45 In the present case, there is no suggestion of relevant financial loss or physical harm. The evidence of the applicant was that, as a disabled person, he was left in a very confused state and he was anxious (exhibit F). He tendered a medical report from a general practitioner dated 7 May 2003 (contained in exhibit E) which was objected to by the respondent. That medical report states that the general practitioner has treated the applicant for over three years and that he has suffered during that time from severe anxiety, depression and insomnia. It also stated that he is being treated for tension headaches and pain clinic and this is also affecting his interpersonal relationships. It is said his stress has been aggravated greatly "by his dealings with the Housing Department".
46 This evidence from the general practitioner is not sufficient to establish that the applicant is suffering from a physical or psychological condition "because of the conduct of the public sector agency" complained of in relation to the first allegation which has been proved. In order to persuade the Tribunal to the level of satisfaction required by section 55(4)(b) of the Privacy Act, particular evidence is required that the conduct of the agency that is complained of in the proceedings (and not the conduct of the agency more generally) has caused the harm identified in the section. I do not find that the disclosure to Radio 2UE has caused to any relevant [degree?] compensable loss or harm to the applicant. [sic]'
Procedural Fairness and the Self-Represented Applicant
12 GR's position at the appeal hearing was that, had he known, he would have placed better evidence before the Tribunal on the question of psychological harm. GR's basic complaint is that he should have been given an opportunity to put on such evidence. GR had put forward a medical opinion - from his regular general practitioner - that he was suffering from stress, a condition that may amount to psychological harm. In principle it would seem possible that some part of that stress is attributable to anxiety over the unlawful disclosure.
13 GR asserts that he had no inkling that his medical evidence was not addressed to the issue that the Tribunal was required to consider (causation). Had he known it was insufficient, he would have put on better evidence. He said that he only found out that there was a problem with the evidence via the reasons for decision.
14 (He referred at hearing to a conversation he said he had with a Registry officer who told him to get a 'medical report'. There is no evidence before us on this matter, other than GR's assertion. We make no finding as to whether the conversation as described by GR took place.)
15 GR's objection raises the question of the extent of the Tribunal's duty to self-represented parties.
16 In New South Wales the leading statements as to the duty as it stands at common law are found in Rajski v Scitec Corporation Pty Ltd (unreported, NSWCA, 16 June 1986). Samuels JA said at 14:
'In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.'
17 Mahoney JA said at 27:
'Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done.'
18 There are more extensive statements of the duty to be found in other sources, such as the Guidelines issued by the Family Court, see now Re F: Litigants in Person Guidelines [2001] FamCA 348 (4 June 2001) at [6]-[8]. See also Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438, Secretary, Department of Health and Human Services v JWB and SMB (1992) 175 CLR 218; Nagy v Ryan [2003] SASC 37; Platcher v Joseph [2004] FCAFC 68; Guidelines for Barristers on Dealing with Self-Represented Litigants (NSW Bar Association, October 2001); Nicholson R 'Australian experience with self-represented litigants' (2003) 77 ALJ 820. The degree of intervention by the court or tribunal must not be so great as to put their impartiality at risk, but the boundaries of intervention are flexible. See further Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 397 (NSW CA), per Kirby P; Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Vic, Smith J, 15 September 1997) at 6.
19 Section 73 of the Tribunal Act refers to the procedural obligations of the Tribunal:
' 73 Procedure of the Tribunal generally
(1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure.
(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(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.
(5) The Tribunal:
(a) is to act as quickly as is practicable, and
(b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and
(c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and
(d) in the case of a hearing - may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and
(e) may require a document to be served outside the State, and
(f) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and
(g) may dismiss at any stage any proceedings before it if the applicant withdraws the application to which the proceedings relate, and
(h) may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance.
(6) A judicial member may:
(a) hold a directions hearing in relation to any proceedings before the Tribunal, or
(b) authorise a non-judicial member, the Registrar or a Deputy Registrar to hold a directions hearing in relation to any proceedings before the Tribunal.'
20 The provision of particular relevance to this appeal is s 73(4). The questions raised are whether the Tribunal took such measures as were reasonably practicable:
(i) to ensure that GR understood the nature of the assertions made in the proceedings and the legal implications of those assertions (see s 73(4)(a)), and
(ii) to ensure that GR had the fullest opportunity practicable to be heard or otherwise have his submissions considered in the proceedings (see s 73(4)(b)).
21 The requirements bearing on the Tribunal are, arguably, stricter than those applying at common law.
22 This case is typical of cases that arise in the 'review' jurisdictions of the Tribunal. It involves a self-represented applicant applying for review - in this instance, of the conduct as distinct from a decision - of a government agency. The government agency is invariably represented, as it was in this case by counsel. GR's position essentially is that he did not understand that the general opinion given by his medical practitioner did not address the question of the precise causal connection between the disclosure in issue and an element, at least, of his present condition, and the further question of whether that condition in any event constituted 'psychological harm'. Causation is not an easy concept to grasp.
23 We have reviewed the transcript of the proceedings. In our view, there is considerable doubt that GR ever understood that to establish a claim for compensation it was necessary to show a causal link between the contravention as found and the alleged psychological harm.
24 There was a short hearing on 29 April 2003. This ended with directions being made to both parties in relation to the filing of additional material. The main hearing occurred on a second day, 16 July 2003. Passages in the transcript relevant to the present question are at pp 38-46, 108-112, 131 and 136.
25 The transcript records at p 38 that GR tendered the medical certificate from his general practitioner. She stated that she had treated GR for the previous 3 years, that he has suffered from severe depression and insomnia, and that he is under treatment by a pain clinic for tension headaches. She considered that this stress had been contributed to by his dealings with the Department of Housing.
26 The presiding Member raised his doubts as to the usefulness of this certificate at pp 39.47 and 40.23. He noted that this information referred generally to GR's dealings with the Department of Housing. (GR had been involved in a number of disputes with the Department, and at the time had, as previously noted, a Supreme Court case on foot over the removal of the screen door.) The presiding Member again referred to his doubts about the usefulness of the certificate at p 41.40. He asked GR at p 42 why the certificate was relevant. GR said that it was because he wanted compensation. At p 43.12 the presiding Member said that in order to get compensation the certificate 'has to relate to something specific'.
27 Dr Gaudin from the Office of the NSW Privacy Commissioner then drew attention to the precise terms of s 55(4)(b) of the Privacy Act. It is clear from what follows that the presiding Member then focussed on the issues to which he returned in his decision (causation, psychological harm).
28 Mr Karp, counsel for the Department, objected to the admission into evidence of the medical certificate. There was a discussion with Mr Karp as to what might constitute psychological injury. The certificate was admitted with the presiding Member saying at p 44.48, 'I'm minded to admit it, but the weight that I can accord it would be either miniscule or very, very slight.'
29 The subject next arises at p 108 in the course of evidence being given by GR. The presiding Member asked him to describe the stress that he felt he was under. He mentioned matters of a mental and physical kind. He referred to his difficulties sleeping, and the feelings he has when dealing with the Department. At p 111:32 the presiding Member said to GR after mentioning the Privacy Act, 'Well, it has got to be stress and anxiety that is caused by the conduct.'
30 GR said in reply: 'I am not a psychiatrist, …. I don't know what types of anxiety and what's the name of them are.' The presiding Member then said, 'You tell me whatever you need to tell me.' The Member then referred to the way time would be used for the remainder of the day. GR appears from the transcript to have become distressed at this stage, and says in reply to the Member's invitation, 'I can't continue. I can't explain myself.' (p 112.9). He was encouraged to continue and did so. He referred to incidents in the previous few days involving the Department that had put him under stress.
31 The next references to these issues are at pp 131 and 136. At p131 Mr Karp questions whether 'psychological harm' has been shown as there is 'no evidence as to clinical level of stress', and submits that if GR is entitled to any compensation it should be minimal, say $500. GR would appear to be responding to those comments, in his reply at p 136.10, when he submits that Mr Karp is not qualified in psychology or psychiatry and is not qualified to give such an opinion. He then refers again to the fact that the doctor has said he suffers stress. He also referred to the $500 suggestion and described it as 'laughable'.
32 The Tribunal did indicate its reservations as to whether causation was able to be shown. However, at no point were the terms of s 55(4) set out for GR, nor was it explained that the provision itself required a direct causal connection to be shown. We doubt whether GR would have understood the Tribunal's indication that it would give the certificate little weight as, in effect, indicating that his case for compensation was doomed to failure.
33 This is the first case to arise in the Tribunal under the Privacy Act considering the interpretation and application of s 55(4)(b). Especially in these circumstances, in our view, the Tribunal should have been clearer in explaining to GR the inadequacy of the certificate. In our view this is a case where due to lack of legal skill, the applicant, GR, failed to claim rights or to put forward arguments which otherwise he might have done - to use the words of Mahoney JA in Rajski v Scitec. In any event in our view s 73(4) of the Tribunal Act imposes a more exacting duty than that found at common law.
34 In regard to the issue of how far this Tribunal should go in giving assistance to a self-represented party, a distinction should be drawn between truly adversarial proceedings such as those in Rajski v Scitec and those, like the present, that are in the nature of review proceedings directed to the quality of public administration.
35 We note that there is an issue as to whether proceedings under the Privacy Act are for the purposes of the Tribunal Act properly characterised as belonging to the 'review of reviewable decisions' jurisdiction or the 'original' jurisdiction. We will not deal at length with that issue here. It has been discussed in detail in Fitzpatrick -v- Chief Executive Officer, Ambulance Service of NSW [2003] NSWADT 132 and by Sharp N, 'The chameleon tribunal: The Administrative Decisions Tribunal of New South Wales' (2003) AJ Admin L 181 at 188. Normally the 'review' jurisdiction of the Tribunal is directed to review of a 'decision'. In Privacy Act cases the Tribunal undertakes a second review of the conduct in issue, the first review being that conducted as an internal review by the agency. The difference is that the Tribunal is not engaged in review of the internal review outcome. But as is the case when decisions are being reviewed, the Tribunal is a second-stage reviewer of the original matter, here conduct rather than a decision. Whatever the proper characterisation of the Tribunal's role for the purposes of the Tribunal Act, qualitatively the function is one of review and the following observations of the Australian Law Reform Commission (ALRC) are apposite, though directed to merits review of administrative decisions.
36 The ALRC in its Report No 89, Managing Justice: A Review of the Federal Civil Justice System (AGPS, 1999) said (footnotes omitted):
'9.10 Review tribunals are directed to make the correct or preferable decision after considering the whole of the evidence, and to ensure that their decisions are in accordance with relevant legislation. Neither the applicant nor the respondent agency carries a burden of proof to prove or disprove a fact.
9.11 In review tribunal proceedings there is no necessary conflict between the interests of the applicant and of the government agency. Tribunals and other administrative decision making processes are not intended to identify the winner from two competing parties. The public interest `wins' just as much as the successful applicant because correct or preferable decision making contributes, through its normative effect, to correct and fair administration and to the jurisprudence and policy in the particular area. The values underpinning administrative review are said to encompass the desire for a review system which promotes lawfulness, fairness, openness, participation and rationality. The provision of administrative review can be seen to fit neatly into a model of pluralist and participatory democracy.
… 9.35 … Where the applicant is unrepresented the tribunal generally will have to adopt a more interventionist approach and apprise itself about the facts and the law. Some of the tasks may be undertaken by the respondent agency, if the agency is a party and participates in the proceedings.'
37 In Privacy Act cases both the agency, and the Tribunal pursuant to s 73, must ensure insofar as it is reasonably possible that all relevant material is placed before it in relation to the conduct in issue. The agency in its internal review report will, hopefully, have provided full particulars of the conduct in issue. If there is contention, then the Tribunal must 'ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings' (s 73(5)(b)). This would normally be achieved by the agency producing all relevant evidence. Then the questions that fall to be addressed are the lawfulness or otherwise of the conduct, and, if unlawful, the appropriate remedy. As to remedies, most of the remedies provided by the Privacy Act seek to deal with the errant conduct by way of administrative measures (and might generically be described as 'conduct orders'). Paragraphs (b) to (f) of s 55(2) of the Privacy Act allow for: order to refrain from unlawful conduct, order to perform a Privacy Act requirement, order to correct information that has been disclosed, order requiring specified steps to be taken (a typical step would be order to render a written apology or to include notations or deletions on affected files), and order not to disclose information contained in a public register. In all these instances the successful applicant might raise possibilities but it is really for the Tribunal having regard to submissions from the agency to decide what an appropriate 'conduct' order might be.
38 The position is different in relation to the first type of order listed - an order for monetary compensation (para (a)) - a 'damages' or 'money' order. In this instance it is for the applicant to put material before the Tribunal in support of such an order. The agency must have the opportunity to test that material. As applied to this case, s 73(4) required the Tribunal to tell GR in clear terms that the material supplied lacked the degree of detail sufficient to raise for consideration a claim for compensation under s 55. Ideally GR should, once concerns of this kind were present in the mind of the Tribunal, have been placed on notice and given an opportunity to repair the perceived omission. He is not in the same position as a legally represented person; and can not be expected to see the points of detail as they apply to applications for monetary compensation, applications which will ordinarily be strongly resisted by agencies.
39 On balance, we are not satisfied that the Tribunal gave GR a sufficient opportunity to present the case on compensation. In a situation where the issues of liability and remedy were being heard together, GR should have been given the opportunity of an adjournment to decide whether to put on material that specifically addressed the question of whether the conduct in issue (separately or as a whole) could be said to have caused his present levels of stress, at least to some degree, and directly addressed the question of whether the degree of stress so identified amounted to psychological harm. (This is a matter that might have been dealt with at the planning meeting stage, but there is nothing to indicate in the material on file that this occurred.)
40 One of the difficulties in this case was that the Tribunal had not reached the point of ruling on whether any contraventions had occurred when the issue of the appropriate remedy was being canvassed. While it is common in legal proceedings for both issues to be dealt with in the same hearing, problems can arise. As it transpired, it would have been a waste of time for GR to have obtained a specialist report on any linkage between any psychological harm that he was suffering and the two matters of conduct found not to constitute contraventions.
41 In Privacy Act cases where multiple allegations are made, and compensation in particular is being sought, it may be more practical to divide the proceedings into two stages. The applicant would then only be called on to provide evidence that meets the requirements of s 55(4) of the Privacy Act if there is a finding of contravention. This is probably also a better approach from the viewpoint of the professional called on to advise. There will be clarity as to precisely what conduct has been the subject of an adverse finding, and that would enable the expert to assess the connection, if any, that conduct has to any psychological harm found to be present in the applicant.
42 Clearly a significant onus lies on the applicant at this point to satisfy the Tribunal that the causal connection required by s 55(4)(b) is made out. Equally the agency should have an opportunity to test any expert evidence that the applicant seeks to rely on, including by having the applicant examined by its expert.
43 As there is a finding of error of law, the question arises of whether to grant the appellant's application for leave to extend to the merits. It would be better in our view if the one issue which we have identified as requiring further consideration was remitted to the Tribunal for disposal.
44 Accordingly we remit this aspect of the case to the Tribunal for further consideration in accordance with the directions set out below. The first direction falls on GR. If he does not comply then the Department is able to move to have the application dismissed.
Alleged Disclosure by Building Contractor
45 As indicated earlier, the appeal is not made out in respect of the Tribunal's rejection of GR's case in relation to the other two items of conduct.
46 The first of these is the alleged disclosure of information about GR by a contractor engaged by the Department. GR relied on the evidence of a fellow tenant, Mrs French, in that regard. The contractor, Mr Fahd, gave evidence. It was open to the Tribunal not to accept Mrs French's account of what transpired. It was open to it to prefer Mr Fahd's. We will not reiterate the evidence here. It is set out adequately in the Tribunal's reasons. We note that Mr Fahd specifically denied that he had called GR a troublemaker, acknowledging only that he had referred in his conversations with GR to having had difficulties dealing with GR, and asking Mrs French if in future he could deal only with her over a job being done at Mrs French's place. (Mrs French was away, and had asked GR to keep an eye on it.)
47 GR disputed, in particular, a reason given by the Tribunal for preferring Mr Fahd's evidence. The Tribunal said at [26] of its reasons: 'His memory is better than hers.' It will be seen that this reason is given at the end of broad assessment of the quality of the evidence given by Mr Fahd and Ms French. There are other reasons also given in that passage (see [25] of the reasons): Ms French agreed in cross examination that her memory was not very good; she noted that Mr Fahd had usually had polite conversations with her; she did not give firsthand evidence to the effect that Mr Fahd said GR was a known troublemaker; and the Tribunal's view was that she had formed an 'impression' of the conversation to that effect. In para [24] the Tribunal referred in detail to Mr Fahd's evidence, and the Tribunal expressed itself as impressed by him as a witness and as accepting his evidence.
48 We have also reviewed the relevant transcript of evidence of the hearing. There is no question of law raised. It was open to the Tribunal to prefer the evidence of Mr Fahd. This is not one of those instances where the fact-finding process may be said to have miscarried by, for example, making a finding where there was no available relevant evidence, where critical evidence had been overlooked or where the finding was irrational having regard to the evidence available. See further generally Woodside & anor v Director General, Department of Community Services (CSD) [2000] NSWADTAP 8 at [39] and ff.
Retention in File of History of Tenancies and Certain Photographs
49 The second of the items of conduct found not to constitute a contravention related to the retention by the Department in its tenancy history file of general information about GR, and in particular the photographs previously mentioned. GR contended that the IPP relating to Security and Retention (IPP s 12) had been contravened. The clause of the IPP applicable to this case is s 12(a) which provides:
'A public sector agency that holds personal information must ensure:
(a) that the information is kept for no longer than is necessary for the purposes for which the information may lawfully be used.'
50 The first question is for what purposes can the information lawfully be used. This is a question of law. The second question is whether the information is 'no longer …necessary' to be kept for that purpose. Though we have not had detailed argument placed before us on this issue, in our view this is a question of fact.
51 GR's main concern relates to the continued presence of certain photographs on his file. The photographs show numerous placards on stick-poles set in the front lawn near the front boundary of the house he occupied in 1999. The placards contain statements of protest against the candidate for Mayor in local elections. GR's claim is that the photographs are irrelevant to his tenancy and an intrusion on the exercise by him of his right to freedom of speech. He considers that it is not proper for the Department to have taken and retained on his file photographs of this kind. He sought an order that they be removed from his file.
52 The agency defended its conduct on two bases: the first being that s 12(a) of the Privacy Act was not applicable, as the State Records Act 1998 (State Records Act) overrode the Privacy Act in relation to issues of file-keeping; alternatively, if s 12(a) was applicable, that the agency needed to keep a full tenancy record including material relating to conduct that had caused disturbance in the past (there had been complaints over the posters at the time).
53 The Tribunal ultimately determined the point by reference to s 12(a). It said:
'42 I consider that the respondent is perfectly entitled to retain on file the information it has adduced to the Tribunal in the photographs. The photographs depict the state of one of the rental properties of the respondent at a time in mid-1999, taken from across the road and showing signs publicly displayed by the applicant. Those images are relevant for the respondent to take into account from time to time in undertaking its various tenancy obligations in accordance with the evidence from Mr Calcopietro, which I accept. It is not alleged they are inaccurate or misleading and the respondent has demonstrated their potential use on the file. I cannot comment about what else the respondent or may not have on its file. It is not in evidence before me.'
54 This is an assessment on a question of fact. No error of law is revealed. In our view it is clear that the conduct depicted - placing numerous signs at the front of the property - may be relevant to issues of amenity and possible complaints from neighbours. GR himself conceded to the Appeal Panel at hearing that the Department could rightly concern itself with activities such as having piles of rubble in the front yard or the display of clusters of commercial advertising signs. We do not accept GR's contention that because the contents of these signs were of a protest or political comment variety that amenity issues cannot arise.
55 GR also drew support for his case on appeal from s 19 (Special restrictions on the disclosure of personal information). That provision limits the power of agencies to disclose certain sensitive types of personal information, including 'personal information relating to an individual's … political opinions.' It does not restrain the holding of such information. No question of law is raised. To the extent that the words on the poster can be said to contain political opinions s 19 of the Privacy Act may be attracted. Special care may need to be taken by the Department in relation to any disclosure of that element of the photographs.
56 It is unnecessary in this appeal to deal at length with the other point raised by the Department - the interaction between the Privacy Act and the State Records Act. We note that there were detailed submissions on the point from the Privacy Commissioner, as well as from the Department. We should emphasise that the broader submissions of the Department seeking to justify its information collection and retention practices by reference to the State Records Act and to escape the application of the Privacy Act have not been endorsed by the Tribunal or this Appeal Panel.
57 The obligation in s 12 is addressed to the keeping of personal information by the public sector agency. It should not 'keep' information for longer than it may lawfully be used. It follows that it then should be disposed of, possibly in accordance with State Records Act disposal procedures. It may be that the records could then be archived with the State Records Act in a way that does not offend the principle contained in s 12. In our view every attempt should be made to read the provisions of the Privacy Act and the State Records Act harmoniously.
Order
1. Decision refusing application for an order for financial compensation for contravention of section 18(1) set aside.
2. That the application be remitted to the Tribunal for further consideration.
3. The following directions are given:
(a) Appellant/applicant to file and serve within 42 days any medical or other evidence dealing specifically with the possible impact of the contravention on his present psychological state, including an estimate of the extent to which any psychological harm that he is presently experiencing can be said to be directly attributable to the disclosure.
(b) Respondent, upon receipt of any such material, to be permitted to require the applicant to attend a practitioner of its choosing for the same assessment, and for any evidence arising to be filed and served within a further 42 days.
(c) Matter then to be listed for further directions before the Tribunal.
(d) Either party to have liberty at any time to apply to the Tribunal on 3 days' notice for further direction or final orders.
4. Appeal dismissed as to other grounds of appeal.