Nepean Blue Mountains Local Health District v ENY

NCAT Appeal Panel|2022-07-29

022/00017407 Publication restriction: Pursuant to s 64 Civil and Administrative Tribunal Act 2013 publication or disclosure of the identity of the Appellant is prohibited Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2021] NSWCATAD 382 Date of Decision: 23 December 2021 Before: A Christie, Senior Member File Number(s): 2021/00146516

The reasons for decision of the Tribunal at first instance

Under the heading "Background" the Tribunal recorded [4] that, on 21 May 2021 the present Respondent filed an application for administrative review of a decision made by the present Appellant with respect to the former's request to amend or correct the health information and/or personal information of the Respondent's deceased father pursuant to the HRIP Act and/or the PPIP Act.
The Tribunal identified the issues for determination [13] as "Whether a person (i.e. the Applicant in this case), if they are a valid executor of a deceased person, is able to exercise the rights relating to personal information and/or health information about that deceased person (i.e. the Applicant's father in this case) under the PPIP Act and/or the HRIP Act respectively", and to apply "for the amendment or correction of personal information and/or health information about that deceased person held by the Respondent".
The Tribunal recorded [14] that it was determining a "preliminary matter" and "only considering" the issue identified by it at an "in principle" level. The Tribunal further recorded that, even if it found for the present Respondent "it will remain for the parties to address and the Tribunal to determine whether the Applicant is a valid executor and to consider and determine the other matters/grounds raised in the Respondent's summary dismissal application, none of which are addressed in these reasons for decision".
The Tribunal identified relevant definitions in the PPIP Act and the HRIP Act, including [15] the definition of "personal information". It is not in contest that the Respondent's application involved "personal information" of her late father within the meaning of both statutes. The Tribunal noted that s 4(3)(a) of the PPIP Act and s 5(3)(a) of the HRIP Act did not relate to personal information "about an individual who has been dead for more than 30 years". The Tribunal referred [16] to the definition of "health information" in s 6 of the HRIP Act. It is not in doubt that the information which was the subject of the Respondent's application in the Tribunal constituted "health information" of her late father.
The Tribunal referred [17] to the Health Privacy Principles (HPPs) in Schedule 1 to the HRIP Act, and recorded that amendment of health information is a "distinct health privacy principle (HPP 8)".
The Tribunal recorded the terms of HPP 8 which provide: "(1) An organisation that holds health information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the health information - (a) is accurate, and (b) having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to that purpose, is relevant, up to date, complete and not misleading. (2) If an organisation is not prepared to amend health information under subclause (1) in accordance with a request by the individual to whom the information relates, the organisation must, if so requested by the individual concerned, take such steps as are reasonable to attach to the information, in such a manner as is capable of being read with the information, any statement provided by that individual of the amendment sought. (3) If health information is amended in accordance with this clause, the individual to whom the information relates is entitled, if it is reasonably practical, to have recipients of that information notified of the amendments made by the organisation."
The Tribunal referred [18] to s 7 of the HRIP Act, which is concerned with the capacity to do an act authorised, permitted or required by the Act and provides that, if the individual is incapable of doing such an act, an "authorised representative" of the individual may do so (s 7(2)).
The Tribunal referred [19] to s 8 of the HRIP Act, which defined "authorised representative" as: "(1) In this Act, authorised representative, in relation to an individual, means: (a) an attorney for the individual under an enduring power of attorney, or (b) a guardian within the meaning of the Guardianship Act 1987, or a person responsible within the meaning of Part 5 of that Act, or (c) a person having parental responsibility for the individual, if the individual is a child, or (d) a person who is otherwise empowered under law to exercise any functions as an agent of or in the best interests of the individual."
The Respondent disputed that the provisions of s 8(1)(d) are enlivened in the present circumstances.
The Tribunal referred [20] to the equivalent of HPP 8 in Information Privacy Principle (IPP) 8/s 15 PPIP Act which is concerned with "Alteration of personal information".
The submissions of the parties were identified, commencing with those of the Appellant, which sought summary dismissal of the application to review its decision not to amend personal information or health information of the Respondent's late father.
The Appellant submitted [22(1)] that the personal information and health information in question was that of the Respondent's father, not of the Respondent. We do not understand that the Respondent continues to advance the proposition that the information was hers, on the basis that she may have been referred to in it. That suggestion was, in our view, correctly rejected by the Tribunal.
The Tribunal recorded [23(1)] the submission of the Appellant that the wording of HPP 8 made clear that it "only applies where a living person applies for the amendment of their own health information". The Respondent had applied to amend another person's health information.
The Tribunal also recorded the submission of the Appellant that s 7 of the HRIP Act, which dealt expressly with capacity and the ability of others to be appointed as the "authorised representative" to act on behalf of a person or an individual who is "incapable of doing an act" included "age, injury, illness, physical or mental impairment" but did not include "death".
The further submission of the Appellant [23(5)] that the Respondent self-nominating as "next of kin" was not sufficient for her to be an "authorised representative" for the purposes of her request was noted by the Tribunal. We do not understand the Respondent to have contended before the Appeal Panel that she was an authorised representative on that basis. The Tribunal also recorded [23(7)] the submission of the Appellant that "health information is personal to a particular person and it is not for third parties to have that information amended without that particular person's knowledge or consent".
The Tribunal considered [25] that, in summary, the Appellant submitted that: "(1) The jurisdiction of the Tribunal is circumscribed. That is, as there is no privacy right for which the Applicant may seek review in the Tribunal the administrative review application is misconceived within the meaning of s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) and should be dismissed under that section. (2) If the Tribunal does not dismiss the administrative review application on the basis sought in the Respondent's summary dismissal application … the matter should be relisted to determine the other bases raised by the Respondent in its summary dismissal application."
The submissions of the present Respondent were recorded by the Tribunal [26]-[28]. For present purposes, the Tribunal relevantly recorded the contention of the Respondent [26(2)] that: "Both Wills make the Applicant the father's Executor and therefore the "authorised representative" of their father allowing the Applicant to act on behalf of their late father as regards any rights under the HRIP Act and PPIP Act. As such, the Applicant submits that they are therefore entitled to request, as their father's authorised representative, the correction/amendment of certain personal information and/or health information about their late father held by the Respondent."
The Tribunal also recorded [26(3)] the Respondent's contention that the Appellant had already "accepted, both in writing and by its actions, that the Applicant has the appropriate authorisation to act on behalf of their late father in relation to his personal/health information by already undertaking to make amendments to and put notifications on such and has corrected some of the "false material" included in the Respondent's records relating to their father's health information".
The contention of the Respondent that she had "the right to act as agent on behalf of their late father given their role as Executor" was noted by the Tribunal [27(7)]. The Appellant's claims to the contrary were submitted to be "in direct opposition to everything that the Respondent has said, including in writing, and their actions up until this time whereby they have actually made numerous corrections and annotations on the health information of their late father".
The Tribunal recorded the submission of the Respondent [27(9)] that holding that the incapacity to do an act did not include death "would lead to the very strange result that a health service provider would be liable for corrections to the health information of a living incapacitated person by an authorised representative but not in respect of a deceased person whose health information nevertheless remains "health information" under the HRIP Act for up to 30 years after they have died".
The contentions of the Respondent were recorded by the Tribunal [28(1)]. The Respondent disputed the Appellant's assertion that s 15(1) of the PPIP Act referred only to the individual to whom the information related, as the section did not include that term and its assertion that there was "no mechanism by which a third party can apply to amend another person's personal information under the PPI Act". The Respondent maintained that she had "the appropriate authorisation to act in the place of their late father under the terms of the PPI Act in respect of personal information about him".
Under the heading "Consideration and findings" the Tribunal set out the reasons for its decision [35] that the Respondent could be a person "otherwise empowered under law" to act as an agent of or on behalf of her deceased father.
The Tribunal referred [29] to the definitions of personal information in the PPIP Act and the HRIP Act to include relevant information "about an individual who has been dead" for less than 30 years. The Tribunal held [30] that "from the wording of s 43A PPI Act and ss 53A and 6A HRIP Act it is clear that "individual" as used in these definitions and therefore in the PPIP Act and the HRIP Act also refers to a "deceased individual"" and that the personal information and/or health information about an individual who has been deceased for less than 30 years remains subject to the obligations and retains the rights attaching to that personal information and health information under each of the PPIP Act and HRIP Act respectively.
The finding of the Tribunal [31] was that IPP 8: "must, in order to be consistent with and not make the definition of personal information redundant, be read as including a request by the legal representative (i.e. Executor) of the deceased individual whom the information is about. Otherwise the personal information of an individual deceased for up to 30 years would have rights attached to it and obligations imposed on agencies in respect of it under the PPI Act with no way of exercising (and no one able to exercise) those rights or enforcing (and no one able to enforce) the obligations."
The Tribunal further found [32] on that basis, that HPP 8 "must also be read as including a request of the legal representative of the individual deceased for up to 30 years which the health information is about". The Tribunal held [33] that the expression "an individual is incapable of doing an act authorised, permitted or required by this Act" in s 7 of the HRIP Act "must therefore include a deceased individual the health information is about". The Tribunal added that s 7(2) of the HRIP Act "expressly permits the "authorised representative" (i.e., executor) of that deceased individual to do such acts (i.e. exercise the rights under the HRIP Act) on behalf of that deceased individual who is incapable of doing that act".
The definition of "authorised representative" in s 8 of the HRIP Act and the inclusion in the definition of a person who was "otherwise empowered under law to exercise any functions as an agent" of a deceased individual was relied upon by the Tribunal [34]. The Tribunal thus held [35] that a "valid executor of a deceased individual is clearly a person "otherwise empowered under law" to act as agent of or act on behalf of the deceased individual".
The Tribunal referred [36] to the Judgment of Basten JA in Hunter Quarries Pty Limited v Alexandra Maxon as Administrator for the Estate of the Late Ryan Messenger [2018] NSWCA 178 (Hunter Quarries) and principles from "The Laws of Australia (Chapter on privacy)" relied upon by the Appellant in support of its contention that "an individual under the PPIA (sic) Act and HRIP Act must be alive and an authorised representative can only act on behalf of a living incapacitated individual and not a dead individual, even if they are a duly appointed legal representative of that deceased individual". For the reasons which it provided [37], the Tribunal distinguished the decision in Hunter Quarries.
The Tribunal also [38] held that the definition and words relied upon by the Appellant from The Laws of Australia were "not inconsistent with the interpretation and analysis above as regards the application of the PPIP Act and HRIP Act in these proceedings". The Tribunal also recorded [39] that it had considered the decision in DSC v United Protestant Association [2020] NSWCATAD 315 (DSC) and, particularly DSC at [90].
For the reasons which it recorded, the Tribunal found [42] that "In principle, if an applicant is a valid executor/executrix of a deceased individual who has been dead for less than 30 years they are able to apply to an agency under the PPI Act and/or HRIP Act for the amendment or correction of the personal information and/or health information about that deceased person."

Leave to appeal

The Appellant accepted that it required leave to appeal, and submitted (10) that order 2 of the Orders of 23 December 2021 was a "decision" pursuant to s 5(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) and/or a declaration pursuant to s 5(1)(e) of the CAT Act which, being an interlocutory decision (s 4(h) CAT Act) required a grant of leave to appeal pursuant to s 80(2) of the CAT Act. Although, as the Appellant submitted, leave may be granted on grounds not involving a question of law, if leave were granted in the present circumstances, it would be on the basis that the Appellant demonstrated error on a question of law.
We do not understand that the Respondent necessarily fully appreciated the legal issues with respect to the granting of leave, much less consented to leave being granted.
The Appellant raised six matters in support of its application for leave to appeal. The first (12) was that granting leave would "resolve a controversial question of general principle, regarded by the Tribunal as complex and unsettled", the decision of the Tribunal in DSC being relied upon in that context. As our reasons confirm, we accept that this issue is complex, and raises an unsettled issue of statutory interpretation.
It was secondly submitted (13) that, as between the parties, granting leave will "clarify a significant controversy as to their rights and obligations". As the Tribunal acknowledged, there may be issues of fact remaining to be resolved if leave to appeal is refused. Granting leave would clarify, but not determine whether the present Respondent was an "authorised representative" for the purposes of the HRIP Act. The Tribunal did not, and was not asked to determine that issue.
It was thirdly submitted (14) that granting leave would "radically (and, in the Appellant's submission, substantially resolve) the proceedings below." It was further submitted that "on the present course, the parties would have to enquire further as to the status of the executorship of the deceased - which will no doubt involve compulsory process, as it may raise issues not within the knowledge of either party". In view of the second submission in support of the granting of leave, this submission does not materially add to the second submission, although, if leave were granted, and the appeal allowed, the proceedings below would be completely resolved.
We do not understand that the Appellant contends that the absence of a formal Grant of Probate or Letters of Administration of the Will of the Respondent's deceased father is material to whether the Respondent has standing to pursue the relief which she has sought. There is no suggestion, unsurprisingly, having regard to the sequence in which the Respondent's father, and subsequently her mother, passed away, and the time which has elapsed since the death of the latter, that, save potentially for the purposes of her present application, there is any reason for the Respondent to seek a Grant of Probate or Letters of Administration of the Will of either of her deceased parents.
It was fourthly submitted (15) that the balance of convenience weighed in favour of resolving the question of construction. We accept that the balance of convenience favours clarifying the position of both parties having regard particularly to the time which has passed since the demise of the Respondent's father. Both parties have expressed a desire for the issue raised by the proceedings to be resolved.
It was fifthly submitted (16) that the Appeal Panel would also have the benefit of the appearance of the Information (sic Privacy) Commissioner. We accept that the Appeal Panel has benefited significantly by having the appearance of and assistance from the Privacy Commissioner.
The Appellant sixthly submitted (17) that, for reasons later outlined, the Appellant had not been "permitted to be heard on the critical issue below" which "should be rectified on appeal".
The submissions of the Appellant in support of proposed ground 3 of its Notice of Appeal agitated matters of procedural fairness. The Appellant, appropriately in our view, concluded its submissions with respect to the asserted denial of procedural fairness by conceding (101) that "If the appeal is heard on the construction point, a procedural fairness ground directed to that construction becomes arid". The Appellant maintained that ground 3 "should fortify both the decision to grant leave and the decision to determine the construction of the Act" but "need not be decided only if the construction ground is determined". As the construction ground will be determined, Ground 3 falls away.
In our view, the fate of the application for leave to appeal, and if it be granted the appeal itself, turns on whether the Appellant demonstrates that the Tribunal at first instance erred in its construction of the relevant legislative provisions. If it did, a number of the reasons for granting leave advanced by the Appellant would be established. Conversely, if the Appellant fails to demonstrate appealable error, granting leave would have no utility.
The Appeal Panel understands from the written and oral submissions of the Respondent that, whilst resisting the appeal, she wishes, one way or the other, to obtain finality. Accordingly, if we are persuaded that appealable error has been demonstrated, leave will be granted to appeal and the appeal allowed. If not, leave to appeal will be refused.

Grounds of appeal

The Appellants remaining grounds of appeal asserted: "1 The Tribunal erred in its construction of the Privacy and Personal Information Protection Act 1998 by deciding that an executrix can apply for the amendment of personal information of the deceased. 2 The Tribunal erred in its construction of the Health Records and Information Privacy Act 2002 (NSW) by deciding that an executrix can apply for the amendment of health information of the deceased."
As is not in doubt, the substance of the proceedings traverses both of these grounds. The parties and the Privacy Commissioner have addressed them conjointly and we will adopt the same approach to their evaluation. In reality, as the submissions of the parties and the Commissioner confirm, the real issue in these proceedings is the construction of s 7 and s 8 of the HRIP Act.

The Appellant's submissions

As background to its submissions the Appellant provided (3) the context to the proceedings and referred to the admission of the Respondent's late father to a hospital administered by the Appellant on 19 January 2009, to his death on 11 February 2009, and to the Coroner dispensing with an Inquest into the death in December 2010. On 25 November 2011 the State Coroner referred the matter to the Health Care Complaints Commission (HCCC) which subsequently dealt with a series of complaints made by the Respondent about the clinical care provided to her late father.
The Appellant referred (4) to the submission by the Respondent on 8 March 2021 of a privacy complaint to the Appellant and her application for the amendment of the Respondent's late father's personal information pursuant to the PPIP Act and/or the HRIP Act, which the Appellant declined to deal with by way of internal review on 25 May 2021.
The Appellant referred (5) to the direction of the Tribunal of 24 June 2021 that the Respondent, by 20 August 2021, provide the Tribunal and the Appellant with a "succinct summary of the errors which she alleges require correction and the corrections that she is seeking. A copy of each of the relevant documents which are said to contain the errors is to be annexed to the summary". The Appellant recorded (6) that, pursuant to the order, the Respondent provided a statement, that there was an exchange of correspondence, resulting in consent directions being made on 22 October 2021. The directions relevantly included (order 3) that "the issue of whether the Applicant [present Respondent] is able to apply for the amendment, correction (and related issues) of another person's personal and health information to be determined before all other issues raised in the summary dismissal application".
The Appellant recorded (7) that, on 5 November 2021, it had applied for summary dismissal of the proceedings instigated by the Respondent pursuant to s 55(1)(b) of the CAT Act on the basis that such proceedings were "misconceived". It was further submitted that "an important aspect of that application was the contention that neither the PPI Act nor the HRIP Act empowered ENY to apply for the amendment of the personal information and health information of her late father".
The Appellant set out in some detail the relevant statutory provisions (18)-(32) to which we have earlier referred to, and will again refer to, and do not need to reiterate at this stage.
After reviewing the reasons of the Tribunal (35)-(36), the Appellant identified a number of relevant general principles of statutory construction (37)-(39). The Appellant cited the Judgment of Gageler J in SAS Trustee Corporation v Miles [2018] HCA 55 identifying statutory construction as: "the process by which meaning is attributed to statutory text. In a doubtful case, it involves constructional choice. The statutory text must be considered from the outset in context and attribution of meaning to the text in context must be guided so far as possible by statutory purpose on the understanding that a legislature ordinarily intends to pursue its purposes by coherent means".
The Appellant submitted (38) that the task of statutory construction "must start with the text. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy". The Appellant supported that submission by reference to the decision of the High Court in Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue [2009] 239 CLR 27.
The Appellant further submitted (39) that where the statutory text has a natural and ordinary meaning, that meaning must be ascribed to the text "unless some other course is clearly required" (PMT Partners Pty Limited (In Liq) v Australian National Parks & Wildlife Service (1995) 184 CLR 301 at 310; [1995] HCA 36; Independent Commission Against Corruption v Cunneen [2015] HCA 14 at 77).
The Appellant submitted that the construction of the PPIP Act and the HRIP Act adopted by the Tribunal at first instance was incorrect for a number of reasons (41)-(56). The first of those reasons (41) was that the text of each statutory provision was "deliberate and unambiguous". It was submitted that the ability to request amendment of personal information and health information is confined to the request of "the individual to whom the information relates". It was submitted that an executor is a different person to the individual to whom the information relates. It was thus submitted that the Tribunal at first instance had erred in its construction of the provision by inserting "new words into the section" so that it extended its operation to include the executor/personal representative of the individual to whom the information relates. So doing was submitted to be "rewriting" the legislation, and thus "usurping" the role of the parliament.
It was further submitted (42) that "generally" references to a "person" in statutory causes of action involve non-assignable rights arising from the "distinction between personal causes of action and an impersonal right in the nature of proprietary right" (Mijac Investments Pty Limited v Graham (No 2) [2009] FCA 773 72ACSR 684 at [32]), and that neither s 69 of the PPIP Act nor s 71 of HRIP Act created property rights.
The Respondent submitted that "whilst the Acts do not create statutory causes of action either, there is still a clear analogy: each Act creates the personal facility to seek review of relevant conduct. That is a personal right unless expressly clarified by the statute" (Poulton v Commonwealth [1952] 89 CLR 540 at 572; Trendtex [1982] AC at 702; TS & B Retail Systems Pty Limited v Number3Fold Resources Pty Limited (No 3) [2007] 158 FCR 44 at 465).
It was further submitted (43) that treating the Executor as both the individual for the purpose of Schedule 1, clause 8, of the HRIP Act and the "authorised representative" pursuant to s 8 was "untenable".
The Appellant submitted (44) that the HRIP Act "expressly sets out the circumstances in which a representative can act for an individual". The decision of the Tribunal was submitted to be "inconsistent with reading "the individual" as "the individual to whom the information relates".
It was submitted that where the legislature had "made that express allowance in the HRIP Act but has not done so in the PPIP Act, that implies that there was not intended to be a mechanism for amendment by a third party". The "absurdity of the construction adopted by the Tribunal" was asserted to be apparent in that the Executor was submitted to have been held to be both "the individual" and an "authorised representative" of the individual. Accordingly, it was submitted that "the schemes are similar, enacted by the same legislature, and there was ample opportunity to include an equivalent to s 8 if that were the legislature's intention."
The Appellant submitted (45) that the Tribunal did not consider the context and purpose of the statute but rather "formed a view of the language, and then considered that its context was "not inconsistent" with the result (at [38]). It was also submitted that third party "access and controlling" over an individual's personal information should be "tightly controlled", as the statutory purpose of the HRIP Act established. The Appellant referred to the provisions of s 3(b) of the HRIP Act, which provided that the purpose of the Act was to promote fair and responsible handling of health information by "enabling individuals to gain access to their health information".
It was further submitted that the Tribunal's construction "would allow an executor to unwrite the deceased's instructions as to use or disclosure of information given in their lifetime according to their own preferences". That is not the factual scenario in the present proceedings. We have not been referred to anything, by way of will, or otherwise, by which the Respondent's deceased father purported to give instructions as to the use or disclosure of his personal or health information. If leave to appeal is refused, whether the Respondent was an "executor" of her late father's will for the purposes of the HRIP Act would need to be determined.
The Appellant submitted (47) that the construction urged by it would not mean that no deceased individuals can "exercise" their rights". The Appellant submitted that "each person exercised their rights whilst living - setting boundaries on the use, disclosure, retention and collection of personal information - which survive death". That was said to have been explained by the Tribunal's reasoning in DSC at 95 where it was held that "This means the protections provided for health information survive the death of the person for 30 years. This exemption, however, does not imply a right to access the health information of a deceased person".
It was submitted (48) that "it advances the property rights of the individual to know that they will not be unwritten posthumously. This point was made to the Tribunal below but not dealt with". Again, we do not believe that submission can advance the Appellant's case. There is no suggestion that the order of the Tribunal involves, or could involve, any rewriting of any testamentary or other instrument executed by the Respondent's father with respect to his property, or his personal or health information. There is no evidence that the deceased ever recorded any wishes with respect to his personal or health information after his death.
The Appellant submitted (49) that privacy rights were "not otherwise unenforceable". One way in which the Respondent was submitted to be able to pursue the relief sought by her was through the Privacy Commissioner. We do not understand the Appellant to assert that the Privacy Commissioner's powers extended to dealing with health or personal information in the ways which the PPIP Act or, more relevantly, the HRIP Act potentially enables.
It was also submitted (49) that the precise balance between "enforceability" and "personal autonomy" over health information is a difficult policy question, which "perhaps explains the limited express circumstances provided by s 8 of the HRIP Act, and the anterior limitation in s 7. That is quintessentially an issue for parliament, not the courts and tribunals".
The Appellant further submitted (50) that "almost the entire basis of the Tribunal's approach below was the concern to augment the enforceability of the privacy legislation". The Appellant relied upon the decision in Director General, Department of Education and Training v MT [2006] NSWCA 270; (2006) NSWLR 237 at [49] to [50], where it was said: "The Act is beneficial legislation which must be liberally interpreted in order to achieve its beneficial purpose. That does not mean that it must be interpreted in such a way that whatever may be regarded as improving its enforcement must fall within the intention of the legislature. As the Supreme Court of the United States said in Rodrigues v United States 480 US 522 (1987) at 525-526: "No legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice - and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute's primary objective must be the law.""
The Appellant submitted (51) that the construction adopted by the Tribunal provided a number of "anomalous results". The first was submitted to be the question of "what other persons involved with the administration of the estate can take control of a deceased's personal health information". That question does not in our view arise in the appeal. We do not need to speculate about that. We are concerned in this matter only with whether the executor named in a deceased's will is an "authorised representative" for the purpose of the HRIP Act. Similarly, we do not need to engage with whether solicitors or others appointed as an Executor being "conferred wholesale access and control over health information for up to 30 years after the death was likely".
It was submitted that the construction preferred by the Tribunal at first instance did mean that "every executor can stand in for the individual for all purposes under either Act". We do not know that the Tribunal's interpretation involved that implication. The Tribunal dealt with the issue before it, as is the Appeal Panel.
It was submitted that the Tribunal's interpretation left "no room for the individual to disclaim that their executor did not have such power over their health and personal information". The Tribunal did not make that finding. The issue does not appear to have been significantly agitated before the Tribunal. As will be seen, it assumes significance in our reasoning.
The Appellant referred (52) to the facts of DSC in which there were Co-Executors, one of whom sought provision of the deceased's medical file, the other of whom opposed that happening. Although DSC is instructive, the factual differences with those in the present proceedings limit the extent to which it assists the Appeal Panel. With respect to the Appellant, the extract from the Judgment in DSC neither advances the Appellant's case nor impedes that of the Respondent. That is for at least two reasons. The most obvious is that the case involved co-executorship. Also, which does not arise in this case, there was an assertion in DSC that providing access would "have an unreasonable impact on the privacy of other individuals", and its consequential impact on the determination of that issue.
The Appellant asserted a number of other matters (55) in reliance upon the decision in DSC. With respect to the Appellant, the four matters there referred to serve primarily to distinguish DSC from the present case even accepting, as was appropriately conceded by the Appellant (56) that "DSC is neutral authority as to the ultimate question in the appeal".
In oral submissions, the Appellant referred to the decision of the Appeal Panel in Davis v Minister for Health [2022] NSWCATAP 115 at 81 and 82. The Appeal Panel there recorded that: "A Court or Tribunal may imply words into a provision where necessary to ensure that the provision does not give rise to an anomalous result or manifestly contradict its apparent purpose. In Taylor v Owners - Strata Plan No 11564 [2014] 253 CLR 531 (Taylor) the majority (French CJ, Crennan and Bell JJ) considered the principles that apply where a party contends that a statute should be read as if it contained additional words: "37 Consistently with this Court's rejection of the adoption of rigid rules and statutory construction, it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation. As the review of the authorities in Leys demonstrates, it is possible to point to decisions in which courts have adopted a purposive construction having that effect. And as their Honours observed by reference to the legislation considered in Carr v Western Australia, the question of whether a construction "reads up" a provision, giving it an extended operation, or "reads down" a provision, confining its operation, may be moot. 38 The question whether the Court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgement of matters of degree. That judgement is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills "gaps disclosed in legislation" or makes an insertion which is "too big, or too much at variance with the language in fact used by the legislature" (citations omitted).""
The Appeal Panel recorded [82] that the majority in Taylor concluded (at [39]) that it was "unnecessary to decide whether Lord Diplock's three conditions are always, or even usually, necessary and sufficient". According to Lord Diplock, satisfaction of the following conditions was necessary to imply words into a statute: "(i) that it is possible to determine from consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy, (ii) satisfaction that the drafter and the parliament inadvertently overlooked an eventuality that must be dealt with if the provision is to achieve that purpose, and (iii) the Court must be abundantly sure of the substance, although not necessarily the precise words, the legislature would have enacted (Jones v Wrotham Park Settled Estates [1980] AC 74, as reformulated by Lord Nicholls of Birkenhead in Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586 at 592; [2002] All ER 109 at 115)."
The Appeal Panel in Davis was "not confident that the legislature intended" to give the relevant provision a narrow meaning as was "not evident from either the text of the relevant provision, or the statutory scheme". The Tribunal at [86] also held that to imply into the relevant statutory provision the disputed "additional words" would be "too much at variance with the language in fact used by the legislature" in reliance upon Taylor at [38].

The Respondent's submissions

The Respondent's submissions of 17 March 2022 focus rather more on factual matters than the construction issue which is central to the outcome of the present proceedings. The Respondent addressed in detail the question of leave to appeal and the reasons for her opposition to such grant. The approach which the Tribunal has earlier indicated with respect to that issue is not in our view precluded by anything raised by the Respondent with respect to the granting of leave to appeal. Nor is the Respondent prejudiced by our approach- leave to appeal will not be granted unless appealable error is demonstrated.
In the context of her submissions with respect to statutory construction, the Respondent referred to the Judgment of Edelman J in SAS in which His Honour said: "The task of statutory construction involves the legal application of the meaning of statutory words, as interpreted, to the facts of a case. In Federal Commissioner of Taxation v Consolidated Media Holdings Limited, this Court said that the task of statutory construction must begin and end with the text of the statute. That statement does not mean that the text of a statute must be interpreted only according to the range of semantic meanings of the individual words. It means only that the interpretation of a statute, like any other legal instrument, is an interpretation of its words. Those words are interpreted in their context and in the light of their purpose although legal rules can sometimes exclude or restrict the use of some content. In ascertaining the reasonably intended meaning of parliament context is, literally, those matters to be considered (simultaneously) together with the text. Context can give words an interpretation that is the opposite of their ordinary meaning and grammatical sense. Context can also permit a construction of words that excludes their application to matters that would have fallen within the application of their literal meaning."
The Respondent referred (38) to the "mischief" which she submitted the legislative provisions were intended to address. Although not expressly articulated as such, we understand the Respondent to assert that the "mischief" which the legislation sought to address was that, but for the provisions of the HRIP Act, particular persons would be unable to access health information of an individual after the death of the individual.
The crux of the Respondent's case was accordingly that, although the deceased might not have expressly requested prior to his death, that his executor be able to seek amendment of his health information, it was logical that his executor have that capacity. Acceptance of that proposition need not mean that the Respondent can pursue the relief which she seeks, but that involves a factual determination which does not arise in these proceedings. The Respondent's contention, variously expressed in her written material, was that the construction of the provisions urged by the Appellant would enable it, and similar agencies, to avoid scrutiny of the provision of care to persons in their charge.
To the extent that the Respondent may have sought to have the construction of the relevant statutory provisions adopted by the Tribunal at first instance upheld on the basis that she was exercising rights to her own information, we cannot accept that to be so. The fact that, in personal or health information of the Respondent's deceased father, there may have been personal and/or health information relating to her, does not in our view, without more, constitute those records or that information personal or health information of the Respondent.
The Respondent submitted (49) that the Appellant's "assumption that the amendment request will be made by a living person who has the notional capacity to make the request on their own behalf" was erroneous. We have not been referred to any evidence establishing that the Respondent's father expressed or recorded any wishes with respect to his personal or health information being accessed after his death. Nor have we been referred to any evidence establishing whether the deceased had the capacity to do so in any event. The Respondent's point seems to be that the failure of an individual to authorise someone to access his or her personal or health information after death, prior to the individual's death, should not mean that the individual's executor cannot do so.
In that context the Respondent referred to Stephenson v HREOC & St Vincent's Hospital Limited [1996] FCA1654 at 36 in which the Court said: "that the drafter assumed that the complainant would be alive and well and able to participate in the conciliation conference or enquiry. But it is another matter to say that an assumption of the complainant's availability indicates a legislative intention that, if the complainant dies, the complaint should also die. Imputation of that intention to parliament would unduly and unnecessarily frustrate the realisation of the objects it set out to achieve."
The Respondent contended that the absence of express appointment of an authorised representative for the purpose of an individual's personal or health information does not imply that, after his or her death, the individual would not wish anyone to have that ability. The Respondent's submitted, in effect, that an intention that an authorised representative have that ability should be implied in the absence of the individual giving a clear contrary intention.
In further support of her contention that the Tribunal at first instance did not err in finding, the Respondent referred to the Judgment of Isaacs J in Fell v Fell [1922] 31 CLR 266 at 278 establishing that representation of a testator by an executor: "is of a peculiar nature, owing its special character and attributes to the circumstances in which it originated and the purpose it was designed to serve. Death, while removing the individual, leaves the property, debts, and claims of the deceased still remaining. His [sic] nomination of an executor is a request to represent him for certain purposes including the payment of debts, and to do what he can no longer do for himself."
With respect to the Respondent, there is a material distinction between statutory and other principles governing the law of succession, and the statutory provisions with respect to personal and health information of an individual with which we are concerned.
The Respondent further relied (69) on the Judgment of Brennan J in Hawkins v Clayton [1988] 164 CLR 539 with respect to the limits of the purposes for which an executor represents a testator. We do not consider that the fate of the present proceedings is influenced by anything said in that case.
In further support of her contention that she was an authorised representative of her late father for the purposes of the relevant legislative provisions, the Respondent referred (74) to (80) to the law of agency. Although the definition of "authorised representative" in s 8(1)(d) of the HRIP Act refers to the exercise of functions under the Act "as an agent" we do not consider that the determination of the present proceedings is assisted by reference to the law of agency. The only agency upon which the Respondent relies, or appears able to purportedly rely, is as her late father's executor. As is not in doubt, a person can only be appointed the agent of another during the life of the principal. As the authorities to which the Respondent referred (75) confirm, prior to death an individual cannot have an executor, only an agent. After death, a person may have an executor, but cannot have an agent.
We do not understand matters concerning "best interests" assume significance for present purposes. If the "in principle" decision of the Tribunal is not disturbed, that may be an issue for determination.

Submissions of the Privacy Commissioner

The Privacy Commissioner filed submissions in these proceedings on 1 April 2022. The Privacy Commissioner did not exercise the right to appear before the Tribunal at first instance, which does not attract our criticism but, pursuant to s 55(6) of the PPIP Act had a right to appear and be heard in the present proceedings. The construction of the PPIP Act is not central to the determination of the present proceedings. We do not understand that either party suggested that there was any doubt with respect to the right of the Commissioner to appear and be heard with respect to the construction of the provisions of the HRIP Act. Nor do we understand there to be any suggestion that so doing was other than entirely appropriate which, in our view, it was.
The Privacy Commissioner suggested (8), that the present proceedings raise "significant questions touching on the scope and operation" of the PPIP Act and HRIP Act. Albeit with respect more to the HRIP Act than to the PPIP Act, we accept that the Tribunal's in principle finding raises "a significant question about rights and authorised persons in NSW privacy laws" as submitted by the Privacy Commissioner, at (9).
The Privacy Commissioner submitted (10) that the finding of the Tribunal: "does test the scope and operation of the legislation, by accepting that the general protections and obligations in the PPIP Act and the HRIP Act are exercised without distinction for information about a deceased person, and read in the functions of an executor into the authorised representatives under s 8 of the HRIP Act. The Tribunal and Appeal Panel have not previously determined such a proposition, and while the Tribunal has considered executors in recent authority concerning a private sector person under the HRIP Act [a reference to DSC] that authority did not resolve whether NSW privacy laws give powers, permissions or entitlements to an Executor."
The Privacy Commissioner identified (12), accurately, the construction of the term "individual" in the relevant statutory definitions and how that is read with the phrase "at the request by the individual to whom the information relates" in the amendment principles in s 15 of the PPIP Act and clause 8 of Schedule 1 to the HRIP Act. Helpfully in our view, the Privacy Commissioner's submissions (15) focused on matters of statutory construction and interpretation of the PPIP Act and HRIP Act "as currently drafted". Properly in our view, the Privacy Commissioner did not engage with ground 3, which has fallen away in any event.
The Privacy Commissioner submitted (20) that it was important to "firstly identify the statutory purpose and scope of the protection given to personal and health information under the PPIP Act and the HRIP Act". It was further submitted (21) that there were "some distinctions between these Acts which may inform the grounds of appeal, including, the targeted objects and purposes of the HRIP Act set out for health service providers, and its provisions dealing with capacity (of an individual to do certain acts under the HRIP Act) and legal authorisation for representatives."
The Privacy Commissioner referred to the decision in Waters v Transport for NSW [2018] NSWCATAD 40 at 51 with respect to the concept of a "general privacy right imputed by the long title to the PPIP Act and to the statement at 156 in Waters that "the HRIP Act is a "second generation" privacy statute which (as of design and function) includes rights principles that go beyond the earlier statutes such as the PPIP Act. In addition, I note that the HRIP Act includes "objects" provisions whereas, other than the long title, the PPIP Act does not contain objects".
The Privacy Commissioner referred (25) to the purposes of the HRIP Act as they find expression in s 3(1), they being the promotion of: "fair and responsible handling of health information by: (a) protecting the privacy of an individual's health information that is held in the public and private sectors, and (b) enabling individuals to gain access to their health information, and (c) providing an accessible framework for the resolution of complaints regarding the handling of health information."
The objects of the Act referred to are (s 3(2)): "(a) to balance the public interest in protecting the privacy of health information with the public interest in the legitimate use of that information, and (b) to enhance the ability of individuals to be informed about their health care, and (c) to promote the provision of quality health services."
The Privacy Commissioner referred (29) to the "focus" on the "individual" in the PPIP Act and the HRIP Act and the definition of "personal information" and health information in the PPIP Act and HRIP Act respectively. We do not understand that it is necessary, for present purposes, to engage with the definition of "personal information". The issue for determination is whether, the executor of a deceased person has the right to access the personal or health information of a deceased individual. There may be issues about whether any particular information constitutes health or personal information pursuant to the relevant statutory provisions, but, if it is to arise, that would arise in the event that the present application is dismissed.
We do not dispute, and do not understand either of the parties to dispute, the proposition (30) that the protection principles articulated in the PPIP Act and HRIP Act "constrain agency conduct with "strangers" or third parties unless certain circumstances are specified, to avoid unauthorised dealing with personal health information" (see ALZ v SafeWork NSW [2017] NSWCATAP 51 at 82).
The Privacy Commissioner accepted (46) that the "PPIP Act and the HRIP Act apply to the personal and health information about deceased persons", but submitted that it was relevant "to consider how or to what extent the statutes deal with deceased persons". The Privacy Commissioner further submitted (47) that "neither Act provides a contextual distinction for how a deceased person is a continuing rights holder. In the PPIP Act and the HRIP Act, the protections and entitlements for information about a deceased person may be implied by the timing limitation of 30 years in the exemptions".
Although we have regard to the submissions of the Privacy Commissioner with respect to not dissimilar statutory provisions in other jurisdictions, the assistance gained from those provisions is limited in circumstances where we are concerned with the construction of particular legislative provisions of this State.
The Privacy Commissioner submitted (50), accurately in our view, that the PPIP Act and the HRIP Act, as currently enacted, do not clearly make provision for deceased persons with respect to the amendment of records in the way accepted by the in principle finding made by the Tribunal. The Privacy Commissioner's position was clearly and succinctly stated (51) as being that the HRIP Act does not "provide for the lawful exercise of request for amendment of records about a deceased person by an executor".
The Privacy Commissioner referred (53) to the limited circumstances "in which an agency may be permitted to deal with a third person or where a person is authorised to represent the individual within the specific terms and context of the acts to be done under the HRIP Act". It was further submitted that s 6(c) and s 6(d) of the HRIP Act contemplated both a living and deceased individual and thus may require an agency to deal with a third party pursuant to the Act.
The Privacy Commissioner referred (55) to the terms of s 7 of the HRIP Act with respect to the meaning of capacity for the purposes of the Act, noting that "incapacity" pursuant to s 7(1) is by reason of "age, injury, illness, physical or mental impairment". As is not in doubt, the section does not refer to death, nor is there any other provision in the HRIP Act which expressly provides that the death of the individual to whom personal or health information relates can trigger the operation of s 8 of the Act.
The Privacy Commissioner referred (56) to the terms of s 8 of the HRIP Act which defines "authorised representative" as including: "(d) a person who is otherwise empowered under law to exercise any functions as an agent of or in the best interests of the individual". That was the provision upon which the Respondent, and the Tribunal at first instance relied. It was submitted (57) that "age, injury, illness, physical or mental impairment" were "the only reasons described by the statute as it is currently drafted" which could trigger the operation of s 8, and that it was readily apparent that each of those reasons assumed that the relevant individual was a living person.
The Privacy Commissioner (59) did not support the Respondent's view that failing to include death as an incapacitating event within the meaning of s 7 was "an absurd conclusion". The absence of reference to death in the text, and ordinary meaning of each of the terms used in s 7 were asserted to be "matters naturally associated with a living person". Largely for the reasons advanced by the Privacy Commissioner, we agree that "capacity should prima facie be presumed for a person and not be based on assumptions that a person cannot exercise capacity".
The Privacy Commissioner referred (62) to the provisions of s 85 and s 95 of the Health Records Act 2001 (Vic) and submitted that "the separation of those two concepts as death or incapacity in that regime may be useful in highlighting the distinct context in applying information and protection rights to a person who is deceased, as well as confirming the lawful acts or permissions by an authorised person, including an executor specified in the statute".
We agree that the reference to the Victorian legislation is instructive for present purposes, and provides support for finding that, if the Parliament of the State of New South Wales had intended the relevant provisions of the HRIP Act with respect to authorised persons to apply in the present circumstances, it would have been a simple matter to reflect that in the legislation, either by extending the definition of incapacity in s 7 to include "death", or, as in the Victorian legislation, enacting a provision specifically dealing with cases involving death of the relevant individual.
It was submitted by the Privacy Commissioner (84) that it was relevant that the personal and health information records of a deceased person may be protected under the Acts for up to 30 years after the death of the individual to whom they relate, but that "certain functions of an executor in dealing with real and personal estates are time limited by statute", relevantly for present purposes referring to s 75A of the Probate and Administration Act 1898 (NSW). As noted earlier, reference to the law of succession provides limited assistance for present purposes.
The Privacy Commissioner submitted, as s 8 of the HRIP Act makes clear that each of the first three categories of authorised representative pursuant to the section is only empowered to act during the life of the relevant individual. In those circumstances, no difficulty arises as to the circumstances in which the authority terminates on the death of the individual in each instance. Conversely, an appointment as executor cannot arise until the death of the individual. In those circumstances, s 8 could not be enlivened pursuant to s 7, and would have to have application independently of it. No provision of the HRIP Act has been identified as enabling s 8 to operate independently of s 7 of the HRIP Act. Although not conclusive of any issue, this does provide support for the Privacy Commissioner's construction of the relevant statutory provisions.
To the extent that further reasons for rejecting the Respondent's contention that she was the individual to whom the health information of her late father relates for present purposes are necessary, the authority to which the Privacy Commissioner referred (92), FCZ v Illawarra Shoalhaven Local Health District [2022] NSWCATAD 79 at [67] to [68] establishes that the relevant health information is that of the Respondent's deceased father, and not that of the Respondent. The fact that the Respondent may have been referred to in such information does not change that. Albeit subject to an appeal in which the decision of the Appeal Panel is reserved, we accept that the Respondent could not advance her application on the basis that any health or personal information held by the Respondent was other than the health or personal information of her late father.
Not insignificantly, in concluding submissions, the Privacy Commissioner referred to the relevant legislative provisions "as currently drafted". As all parties, and the Privacy Commissioner recognise, there is both uncertainty with respect to this issue and, if the Appellant is successful, a potential lacuna in the legislation. There could be situations in which a deceased individual was unaware of either the rights for anyone to access his or her health or personal information after his or her death, or how that might be addressed. Similarly, it is not inevitable that an individual who is "incapable" pursuant to s 7 would have an "authorised representative" who falls within s 8 of the HRIP Act. As the Respondent submitted, it is difficult to accept that, on the one hand, the legislative intention is that, for potentially up to 30 years after death, an individual's personal or health information may be accessible and reviewable yet the right to do so is as constrained as the Appellant contends.,

Consideration

Although the provisions of the PPIP Act inform our decision in these proceedings, the present application involves the construction or interpretation of the provisions of the HRIP Act. The "in principle" decision of the Tribunal [3] was that a "valid executor" of a deceased individual's "will/estate" was an "authorised representative" of a deceased individual pursuant to s 8 of the HRIP Act. Whether the Respondent is a "valid executor" of her late father's will or estate is not a matter which we are required to decide. That involves findings of fact which would only need to be made if the present application is refused. Unless s 7 of the HRIP Act is enlivened, an "authorised representative" under s 8 of the Act is not empowered to exercise any rights of an individual pursuant to the Act. The construction of s 7 of the HRIP Act is thus pivotal to the determination of the present application.
As the authorities to which the parties and the Privacy Commissioner have referred establish, the Tribunal's task, and that of the Appeal Panel, is to construe or interpret the relevant statutory provisions in accordance with recognised principles of construction. That involves a construction or interpretation of the provisions as they are, rather than as the Tribunal or the Appeal Panel consider that they might or should be. As the authorities also make clear, to the extent that the Tribunal may consider that the statutory provisions do not fully address the "mischief" to which they are apparently directed, unless doing so accords with the principles of construction, the Tribunal cannot effectively rewrite the provisions to address those perceived deficiencies.
We agree with the substance of the Privacy Commissioner's submissions with respect to the purpose and objects of the relevant provisions of the PPIP Act, and more relevantly, the HRIP Act with which we are concerned. The purpose of each Act is with respect to the protection of personal information and privacy of an individual and, in the case of the HRIP Act, the privacy of an individual's health information. The purposes include the ability of individuals to access their health information in order to enhance their ability to be informed about their healthcare, to have an accessible framework for the resolution of complaints regarding the handling of their health information and to promote the provision of quality health services, inferentially by persons having access to their personal or health information.
In view of the purposes of the provisions to which we have referred, upon the death of a person, save in limited circumstances, the legitimate interests of others in accessing the personal health information of the deceased person pursuant to the legislation must be limited. Subject to statutory limitation issues, declining to grant the relief sought by the Respondent does not prevent or impede her pursuing any remedies arising out of the death of her father which she may wish to pursue.
The provisions of the Coroners Act 2009 (NSW) enable investigation of the health information of a deceased person in the exercise of coronial jurisdiction. As apparently occurred in this case, the Coroner may refer a health service provider to the Health Care Complaints Commission, which may institute disciplinary proceedings against the provider under the Health Practitioner Regulation National Law (NSW) 2009 if it considers such action warranted.
Relevant personal or health information of a deceased person can be subpoenaed and examined in civil and criminal proceedings in courts. The accuracy or reliability of such information can be challenged in the course of those proceedings. Deficiencies or inaccuracies in such information established in such proceedings would be referred to in the judgment or decision in those proceedings. Provided that it was sought within time, it is difficult to suggest a substantive legal remedy arising out of or with respect to her deceased father which would be, or is likely to be defeated if the Respondent cannot obtain the relief which she seeks under the PPIP Act or the HRIP Act.
Section 25 of the Coroners Act 2009 (NSW) provides that a Coroner may dispense with an Inquest unless an Inquest is required under the Act. The Coroner dispensed with an Inquest concerning the death of the Respondent's father in December 2010.
Section 25(2) of the Coroners Act provides that the Coroner having jurisdiction to hold an Inquest concerning the death of a person may dispense with the Inquest if satisfied that the deceased person died of natural causes and "a senior next of kin of the deceased person has indicated to the Coroner that it is not the wish of the deceased person's family that a post mortem examination be conducted on the deceased to determine the precise cause of the deceased's death".
Section 6A(1)(a) of the Coroners Act defines "senior next of kin" as the deceased person's spouse, or 6A(1)(b) "if the deceased person did not have a spouse or a spouse is not available - any of the deceased person's children who are adults".
In dispensing with an inquest with respect to the death of the Respondent's father, it is reasonable to infer that the Coroner was satisfied of each of the matters referred to in s 25(2) of the Coroners Act. The deceased's spouse having survived him, his widow would have been the relevant person for the purposes of s 25(2) of the Coroners Act.
Section 26 of the Coroners Act provides for the provision of written reasons for dispensing with an Inquest on the application of 26(1)(c) of any person who in the opinion of the Coroner "has a sufficient interest of any kind in the circumstances of the death or suspected death". We do not know whether any such request was made, or, if it was, what reasons were given.
It is in our view significant that s 7 of the HRIP Act defines "incapacity" by reason of five identified criteria, of which "death" is not one, all of which can only occur whilst an individual is alive. The definition does not say that incapacity "includes" those five factors. The definition does not refer to "any other condition" which might extend to "death" as a criterion for "incapacity". Nor does the ordinary meaning of any of the five identified criteria for incapacity accommodate "death" if those criteria are afforded their ordinary meaning, which their context suggests that they should be (Project Blue Sky Inc v Australian Broadcasting Association [1998] HCA 28; (1998) 194 CLR 355; 153 ALR 490).
The maxim of construction that express reference to a matter or matters in a legislative instrument indicates that other matters are excluded assists in the construction of s 7 of the HRIP Act.
In Pearce, Statutory Interpretation in Australia (9th Ed), p175, an example of the application of the maxim is provided whereby: "If five factors are stated as the qualifications necessary for appointment to office A while only three of those facts are specified for appointment to office B, it is reasonable to assume that the omitted factors do not have to be taken into account."
As the learned author points out, that "need not necessarily be the case" for a number of reasons, none of which appears to have present application. As the decisions of the High Court referred to in Pearce at p175 make clear, caution needs to be adopted when considering the application of the maxim (Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) [1982] HCA 2; [1982] 148 CLR 88; 38 ALR 577). Factors which affect the determination of whether the maxim applies include the precision in the drafting of the legislative provision and similarity of the subject matter in the provisions being considered (see Lyford v Commonwealth Bank of Australia [1995] 130 ALR 267). We do not consider that imprecision attends s 7 of the HRIP Act. No other provisions of the legislation to which we have been referred provides a basis for declining to apply the maxim.
It is also relevant to consider whether the Act in which the provisions occur has been amended extensively, thereby increasing the risk of provisions being inadvertently inconsistent (Construction, Forestry, Mining and Energy Union v Hodgkiss [2007] FCAFC 19; [2007] 169 FCR 151; 248 ALR 169). We do not consider that there has been unintentional, or other inconsistency in the present provisions. We are not aware of them having ever been amended in any event.
Application of the maxim is not problematic in the present circumstances by reason of the adoption in the relevant statutory provisions of other statutory instruments, without making clear how the two provisions coalesce (Rylands Brothers (Aust) Ltd v Morgan [1927] 27 SR (NSW) 161).
We accept that Courts apply the maxim with caution and that its application is more appropriate to support a predetermined interpretation or construction than as a rule which results in that interpretation (Carr v Finance Corporation of Australia Limited (No 2) [1982] HCA 43; [1982] 150 CLR 139; 42 ALR 29). The Appeal Panel approaches the construction issues in this appeal in that manner.
The Appeal Panel agrees with the Appellant and the Privacy Commissioner that the legislative intention was not to include "death" as a criterion for incapacity for the purpose of s 7 of the HRIP Act. If it had, it would have been a simple matter for the legislature to have done so by the inclusion of "death" in s 7(1) of the Act. Providing that s 7 could be enlivened by the five specific criteria and "any other circumstance" may also have had that effect.
Alternatively, as with the Victorian legislation to which the Privacy Commissioner referred, if the legislative intention had been that death was a relevant trigger for the operation of s 8 of the HRIP Act, but did not fall within the criteria for "incapacity" within s 7, a separate legislative provision applicable to death could have been included in the Act. If the legislation had so provided, it is likely that an executor named in the Will of a deceased individual would have the capacity to seek access to personal or health information of the deceased individual, and to do so for up to 30 years after the death of that individual.
Whether approached by reference to the three criteria to which the Appeal Panel referred in Davis at [82], or by reference to the principles which find expression in the authorities to which the parties have referred and we have recorded earlier in these reasons, or by reference to the maxim of construction to which we have referred, we conclude that interpreting incapacity in the way in which the Tribunal at first instance did involved error on a question of law.
We are not persuaded that implying "death" into s 7 of the HRIP Act is "necessary to ensure that the provision does not give rise to an anomalous result or manifestly contradict its apparent purpose" as the Respondent submitted. Nor are we able to accept, from consideration of the provisions of the HRIP Act read as a whole, that the absence of reference, either in s 7 or elsewhere, to "death" as a basis for s 8 being enlivened was a "mischief" which either statute sought, but failed to address. We do not accept that our construction of s 7 of the HRIP Act perpetuates a "mischief". Unless statute barred, the Respondent's ability to pursue such relief arising out of the death of her father as she may be entitled is not defeated or impeded by this construction of s 7 of the HRIP Act.
We are not persuaded that Parliament inadvertently overlooked an eventuality, "death", which must be dealt with if the legislation is to achieve the purpose or objects which it records. There is no logical reason to think that the inclusion or omission of "death" in the statutory provision could have been inadvertent. Not being satisfied that the absence of reference to death involves legislative inadvertence, no question of being satisfied of what the legislature would have enacted arises. Even if Parliament "overlooked" including "death" as a criterion for incapacity in s 7 of the HRIP Act, which has not been demonstrated, extending the criteria to include it would, in our view, involve impermissibly re-writing a legislative provision.
The Respondent submitted that the outcome advanced by the Appellant produces an absurd result. We are unable to agree with that proposition. As we have earlier recorded, our construction of s 7 of the HRIP Act does not preclude or constrain the Respondent's pursuit of any remedy which the law provides, or potentially provides her, and none has been suggested.
The terms of s 7(3) of the HRIP Act provide further support for our construction of s 7(1) of the HRIP Act. Section 7(3) provides that: "An authorised representative may not do such an act on behalf of an individual who is capable of doing that act, unless the individual expressly authorises the authorised representative to do that act."
The legislative scheme is thus that, in the case of an individual who is "incapable" pursuant to s 7(1) of the HRIP Act, pursuant to s 7(2) of the HRIP Act an authorised representative may exercise rights under the Act on behalf of the incapable individual. When an individual has capacity, unless the individual authorises a representative to do so, a person falling within the definition of authorised representative in s 8 of the Act cannot exercise rights of the individual under the Act. Provided that a will or other instrument complied with s 7(3) of the HRIP Act, whether an executor named in the will, or a person named in the instrument, could do an act with respect to the personal or health information of an individual after the death of the individual pursuant to s 7(2) of the HRIP Act, potentially for up to 30 years after the death of the individual, is not an issue which we need to consider.
The interpretation of s 7(1) of the HRIP Act advanced by the Respondent would enable the authorised representative of deceased individual who did not lack capacity prior to his or her death to potentially do what s 7(3) of the HRIP Act clearly precludes. The scheme of the HRIP is thus clear. When an individual lacks capacity, his or her rights pursuant to the Act are exercisable by an authorised representative pursuant to s 8 of the Act. When an individual has capacity, his or her rights under the HRIP Act are only exercisable if he or she expressly authorises an authorised representative to do so. We accept that whether s 7(3) of the HRIP applies after the death of an individual who provides authorisation pursuant to the provision is unclear.
For the foregoing reasons, we respectfully disagree with the "in principle" finding of the Tribunal [33] that "incapacity" in s 7(1)(d) of the HRIP Act must include death" and find that its construction of the provision was erroneous in law.

Conclusion

In the circumstances, leave to appeal should be granted and the appeal allowed. In doing so, we accept that the issue is complex and not without uncertainty. We also acknowledge that the Appeal Panel has been considerably more assisted in relation to these difficult issues than was the Tribunal at first instance, particularly as a result of the submissions of the Commissioner, which is not in any way a criticism of the Commissioner not participating in the proceedings at first instance.
In view of the basis of the Appeal Panel's decision, no useful purpose would be served by remitting the proceedings for re-hearing. The appropriate order is thus that the Respondent's application filed on 21 May 2021 be dismissed.

Order 1. Leave to appeal is granted 2. The appeal is allowed 3. The decision of the Tribunal of 23 December 2021 is set aside 4. The Respondent's application filed on 21 May 2021 is dismissed

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 November 2022

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