• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

REASONS FOR DECISION 1 The respondent, the New South Wales Fire Brigades (NSWFB), is a public sector agency subject to the provisions of the Privacy and Personal Information Protection Act 1998 (the Privacy Act). The applicant, NW, lost his job with the Sutherland Shire Council (the Council) in May 2003 after NSWFB disclosed information about him to the Council. 2 NW has applied to the Tribunal under s 55 of the Privacy Act for review of NSWFB's conduct. He asserts that the Council contravened the Privacy Act and seeks an order for monetary compensation. 3 As at May 2003 NW had two jobs. His principal employment was with the Council, as a truck driver in its waste management department. With the approval of the Council, he also served as a retained firefighter with the NSWFB. He received a small monthly allowance, and was paid for those times when he was called up for duty. 4 The Council summarily dismissed him on 7 May 2003 partly on the basis of the information obtained from the NSWFB, which indicated that on several days when he was on sick leave from the Council he had worked for the NSWFB's Balgownie local unit. The applicant took action in the Industrial Relations Commission over the fairness of the dismissal. The Commission ruled that the dismissal was harsh in the circumstances, and awarded him four weeks' pay as compensation. The Conduct in Issue 5 Mr Smith, the manager of the waste management department, had been concerned over a number of aspects of NW's work performance. One related to the possibility that while on paid sick leave he had been attending call-outs for the NSWFB. In April 2003 he made the following written request to NSWFB for information: 'I am trying to establish if there is a pattern to [NW's] sick leave and if he was employed by NSW Fire Brigades or carried out duties for NSW Fire Brigades during his period of workers compensation. Would it be possible to see if there is a correlation between his time off work and his obligations to NSW Fire Brigades. Below is [NW's] leave so far this year. Would it be possible to indicate if [NW] worked voluntarily or otherwise on the day before, during or after the leave?' 6 All fire brigades have an occurrence book. The book contains a record of such matters as calls for assistance and records of attendance for duty, including the names of the officers. Mr Challinor, Human Resources Manager, NSWFB arranged for one of his organisation's officers to inspect the occurrence book entries for the period 6 January 2003 to 15 April 2003. 7 By email dated '01/05/2003 03.43pm' Mr Challinor replied as follows: 'I can confirm that a Senior Officer from the Fire Brigade has visited Balgownie Fire Station to which [NW] is attached and station records confirm that [NW] attend (sic) the fire station for fire calls and other business as follows: 6 Jan 2003 Nil attendanc 13 Jan 2003 4 separate fire calls 3 Feb 2003 2 separate fire calls (0601 hrs and 1926 hrs) 28 Feb 2003 Nil attendance (however travelled to Glenn Innes on Brigade Business) 12 March 2003 3 separate fire calls (0114 hrs, 1017 hrs, 1203 hrs) 17 March 2003 1 fire call (0841 hrs) 8 April - 14 April - Nil attendance 15 April 2003 1 fire call at 0716 hrs and 1 drill-training (1000-1200 hrs).' Whether 'Personal Information' 8 The Privacy Act regulates the collection, use and disclosure of 'personal information'. Public sector agencies are required to comply with a series of Information Protection Principles (IPPs). The IPPs are subject to numerous exclusions, exceptions and other modifications. 9 The definition of 'personal information' is (s 4(1)): 'In this Act, personal information means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion .' (emphasis added) 10 In its decision on internal review NSWFB asserted that the disclosures contained in the email were not affected by the Act as it had not disclosed 'personal information', as defined. There were two lines of argument, which were repeated in the written submissions filed in the Tribunal dated 30 March 2004. The first was that information about the work activities of people listed in the occurrence book is not personal information about them. The second was that the references to name information in the occurrence book were too inexact to amount to information from which a specific individual's identity could be reasonably ascertained. 11 There is no basis for either of these arguments. The first argument involves the error of treating the adjective 'personal' as confining the information regulated to information of a private, intimate or sensitive character. No such limitation is to be found in the definition. As the Federal Court has observed, the question is whether the information is ''personal' in the statutory sense': Seven Network (Operations) Ltd v Media Entertainment and Arts Alliance [2004] FCA 637 per Gyles J at [45]. 12 The second argument is simply unsustainable on the facts. The email referred to the applicant by reference to his full first name and his surname. This argument, insofar as it is based on a contention that the contents of the occurrence book are too inexact to identify clearly the subjects of the entries, is equally untenable. NW's first initial plus surname appear at the relevant points of the book. Clearly short-form naming is common in administrative records, and is often done precisely because that is enough in the particular setting for the adequate identification of the subject. 13 The objectives of the legislation were not being served when the NSWFB dismissed the applicant's complaint on such flimsy grounds, and as a result did not go on to address its substance. Mr Flett of counsel appeared on behalf of NSWFB at hearings on 5 May 2004 and 6 October 2004 and, sensibly, did not press the above views as to the meaning of 'personal information'. 14 Instead NSWFB now relies on two other grounds, the first ground being that the conduct is not affected by the Act because the information falls within one of the exceptions from the definition of 'personal information'. In the event that this submission fails, the second ground is that the disclosure is permitted as it is covered by an exception to the general prohibition on disclosure of personal information. 'Publicly Available Publication' Exception 15 The breadth of the definition of 'personal information' found in s 4(1) is reduced by a number of exceptions found in sub-s (3) of s 4 of the Privacy Act. 16 In this case NSWFB relies on exception (3)(b) which states: '(3) Personal information does not include any of the following: … (b) information about an individual that is contained in a publicly available publication.' 17 NSWFB claims that the occurrence book is a publicly available publication, and that the information contained in the email was entirely derived from the book. 18 The occurrence book is clearly a key administrative document of the NSWFB. It is something like a ship's diary. One would not normally think of the journals of this kind - a commonplace within many organisations - as being publicly available publications. They are journals designed to ensure that there is proper recording - in a day by day style - of critical events. They are usually maintained according to administrative instructions issued by senior officers of the agency; and surrounded by security practices. There may well be liberal conditions in relation to access to such journals, but that factor would not of itself make them 'publicly available publications'. 19 NSWFB relied on an affidavit filed 27 July 2004 from Mr Isemonger, Superintendent, who commenced service in 1978, in support of its contention that these books were completely public. Mr Isemonger stated: 'Fire station occurrence books are public documents and are routinely accessed by the public. Some of the circumstances in which the public access these occurrence books include but are not limited to the following: (a) Fire investigations (including internal and external investigations) (b) Police enquiries and enquiries by Government and non-Government instrumentalities (c) General enquiries by the public relating both to specific information and general information (d) Historical enquiries (e) Public open days at fire stations. The only circumstance in which public access to an occurrence book would be prevented is where the occurrence book is currently in use for current Court proceedings (such as inquests) and this would only occur while proceedings are continuing.' 20 This view is not consistent with an affidavit filed 15 September 2004 from Mr Matthews, Captain of Temora Fire Brigade, whose primary employment is as Country Organiser of the NSWFB Employees' Union. He commenced service as a firefighter in 1977 and states: '…I have on numerous occasions been instructed on the proper and correct use of the stations [sic] occurrence book. … Entries made in the occurrence book detail incidents and events that are at times extremely sensitive and I have been told that no information is allowed to be passed onto any person without following correct procedure. My understanding of the procedure is that an outside agency or person who requires information from the brigade must first request that information in writing. In Order [sic] 1994/10 Confidentiality and Privacy of Personnel Information protects an employees personal information from being distributed without express permission (Attachment A). In Order [sic] 2001/6 Disclosure of Personal Information refers to court and legal proceedings (Attachment B). Therefore employers outside the NSW Fire Brigades who require information about an employee of the brigade should seek written permission from the employee. I would not allow any person to take confidential information from the occurrence book who hasn't the express permission of the firefighter concerned. This decision would be based on training and instructions I have received from the brigade over my career and the reference to Orders 1994/10 and 2001/6.' 21 Attachment A contains the following specific instructions given by NSWFB (1994/10): 'All staff members are under an employment duty and responsibility to both the Department and the relevant officer to respect the confidentiality and privacy of the personal information and must not retain or use another staff member's personnel information. Accordingly, any staff member retaining or using another staff member's personnel information, without having express or direct authority from the Department will have breached their employment duty and responsibility and shall be liable for discipline.' 22 Attachment B is headed 'Disclosure of Personal Information to Courts and Legal Representatives' (2001/6). The opening statement is: 'In compliance with the Privacy and Personal Information Protection Act 1998 , the NSWFB will only disclose personal information to courts and legal representatives if: · the person concerned has given written consent to the disclosure, or · a subpoena has been served on the NSWFB.' 23 This statement is carefully expressed, and most likely reflects a response to the requirements of the Privacy Act which had commenced operation on 1 July 2000, with the sanctions provisions commencing 1 July 2001. The principal exception to the prohibition on disclosure (s 18) is express consent. The document directly addresses what is required in order to be satisfied that express consent to disclosure has been given. It states: 'The Manager Employee Services and Regional Human Resources Managers may disclose personal information to legal representatives when: · the employee has consented to disclosure · the legal representative had provided proof of consent in writing (by letter, fax or email) · the NSWFB is reasonably sure that the request is genuine. Only information specifically covered by the employee's consent can be disclosed. If there is any doubt about the identity of the person or institution making the request, or of the employee's consent to any disclosure, the NSWFB will contact the employee to verify consent before disclosing any information.' 24 This reflects quite a strict approach and is in stark contrast to the position reflected in Mr Isemonger's affidavit so far, at least, as disclosure of information contained in occurrence books is concerned. There is nothing in the above statement to suggest that occurrence book information stands apart from the usual requirements. One might have expected any administrative instruction going to the sensitive issue of disclosure of information about staff and their work to state clearly that occurrence book information was public information and not regulated as to who could see it. 25 The Tribunal also notes the information provided by the industrial officer for the NSWFB Employees' Union, Mr Maniatis, in his submissions filed 23 April 2004. The Tribunal will not set out the whole text at pages 4 to 7 of his submissions, but it contains extracts from In Orders 1991/9 (practices in relation to occurrence books, retention and archiving), 1997/19 (occurrence book - method of roster entries) as well as 2001/6 referred to above. 26 These instructions all point towards the occurrence book being an internal administrative document of significance, which is not prepared on the understanding that its contents are freely available to any member of the public, without restriction. For example instruction 4 in In Order 1997/19 states: 'Members attached to the Platoon who are absent for any reason, i.e. annual leave, long service leave, sick leave, consolidated leave etc., are to be entered on the Roster stating their numbers and names and the reason for their absence.' The Tribunal notes that the Roster is part of the occurrence book: see the first statement in this In Order, 'The procedure for Occurrence Book entries relating to staff disposition, i.e. the Roster, is to be altered commencing 0800 hours on 3 October 1997.' 27 Had Mr Challinor been of the view that the occurrence book was a public document, he might simply have copied the pages for the relevant period and sent them all across to the Council for it to analyse. Instead what he did was have an officer inspect the document, extract the relevant information, and he only conveyed that information to the Council. This conduct is more consistent with the document being treated as an internal document of the agency over which some discretion is exercised as to how its contents are used and disclosed. 28 I am not satisfied that the information given in the email about NW can properly be characterised as information derived from a publicly available publication. 29 This is a very different situation from the one case where the Tribunal has found this exception applicable. There the source publication was the large circulation daily newspaper, the Daily Telegraph: see Commissioner of Police, NSW v EG (EG case) [2004] NSWADTAP 10, affirming the Tribunal's decision. I do not see as relevant to the question of what constitutes a 'publication' for the purposes of the Privacy Act the various defamation law rulings referred to by counsel for NSWFB on the meaning of 'publication' (e.g. Toomey v Mirror Newspapers [1985] 1 NSWLR 173 at 177 per Hunt J). Nor do I consider that the fact of an officer of the NSWFB communicating information in his or her possession to a member of the public is enough to make that 'publication' one of a kind to which the term 'publication' as used in s 4(3)(b) is addressed. Nor is the fact of a communication between an officer and a third party who has no other status than that of member of the public enough for the information given to be described as 'publicly available'. 30 In cases where it is established that the personal information is derived from a publication of the kind covered by para (b), it remains possible that the variation or alteration of that information, or its provision in a different context may mean that the same information is no longer being used or disclosed, in which case the repackaged information may lose the protection of the Act: see further the EG case at [61]-[63]. In the light of the Tribunal's finding as to the status of the occurrence book it is not necessary to consider that question in this case. 31 The NSWFB did not reply in any detail in Mr Isemonger's affidavits to the persuasive points made by Mr Maniatis; nor did it chose to reply to persuasive points of Mr Matthews filed 15 September 2004 received well before the hearing of 6 October 2004. 32 In a case where an agency is contending that a document which on first impression appears to be an internal administrative document is in fact a publicly available publication, there needs, in my view, to be more convincing evidence than that supplied in this case by the NSWFB. A finding that personal information is information 'contained in a publicly available publication' means that the individual named can not access the important human rights protections conferred by the Privacy Act. 33 The more likely position, the Tribunal considers, is that NSWFB has an ill-defined practice of allowing liberal access to the occurrence book entries on the basis once described as a 'need to know' basis. 34 The evidence raises a real concern as to whether, following the passage of the Privacy Act, the personnel information disclosure policies of the NSWFB have taken into account the information relating to work attendance and leave contained in occurrence books; as well as any other information contained in them that names individuals or from which their identity can be reasonably ascertained. The Disclosure Exception 35 The real contest in this case has been over whether an exception to the prohibition on disclosure of personal information covers what occurred. 36 As noted earlier, the Privacy Act generally prohibits the disclosure of any personal information. The basic rule (s 18(1)) is: '(1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency.' 37 This general prohibition is subject to a number of exceptions, qualifications and modifications. The seven most important exceptions are the three found in s 18 itself (express consent; reasonable expectation that such information might be disclosed; and disclosure in response to an imminent threat to the life or health of the individual or another person) and the four found in s 23(5). (The Tribunal notes that there was no reference in the proceedings to s 23(5)(d) of the Act, the exception allowing a disclosure that 'is reasonably necessary … for the protection of the public revenue'.) 38 NSWFB does not rely on any of these exceptions. It relies, instead, on one granted by the Privacy Commissioner pursuant to s 41 of the Act. That provision permits the Privacy Commissioner in the public interest, and with the approval of the Minister, to issue a written direction stating that an agency is not required to comply with an IPP. Any such direction has effect despite any other provisions of the Act: s 41(2). 39 NSWFB claims that its conduct falls within the terms of an exemption provided in the written direction first issued in 2001 (and re-issued 31 March 2003), Direction on Processing of Personal Information by Public Sector Agencies in relation to their Investigative Functions. NSWFB is listed in the schedule to the direction as a 'relevant agency' for the purpose of the direction (as is the Council). The direction provides materially: '3. This Direction applies to the collection, storage, use and disclosure of personal information for the purpose of the exercise by a relevant agency of its investigative functions. 4. A relevant agency need not comply with sections 9, 10, 13, 14, 15, 17, 18, or 19(1) of the PPIP Act if non-compliance is reasonably necessary for the proper exercise of any of the agency's investigative functions or its conduct of any lawful investigations. 5. The provisions of paragraph 4 of this Direction are not intended to override and do not override any other legal requirement dealing with the collection, use or disclosure of information by a relevant agency. … 7. For the purpose of this Direction: "investigation" of a matter includes any examination of or any preliminary or other inquiry, including but not limited to a preliminary inquiry within the meaning of the Public Sector Management Act, into the matter. This includes matters where it is decided to take no further action on the information and matters which arise by way of complaint or otherwise; "investigative functions" of an agency refer to those functions that are directly related to a lawful investigation and that are necessary for the conduct of that lawful investigation; "lawful investigation" means an investigation carried out by an agency under specific legislative authority or where the power to conduct the investigation is necessarily implied or reasonably contemplated under an Act or other law. It covers only those investigations which may lead to the agency taking or instituting formal action in relation to the behaviour under investigation. Such formal action may include, but is not limited to, prosecution, warning, cautioning, the administration of a penalty or the removal of a benefit or approval;'. 40 NSWFB relies on the first part of cl 4. It contends that its conduct in disclosing the information was 'reasonably necessary for the proper exercise of … the agency's investigative functions'. It does not assert that it was itself engaged in a 'lawful investigation'. NSWFB claims that in responding to the request, accessing the occurrence book and providing the information sought, it undertook an 'investigative function'. It claims that the performance of this investigative function was necessary to the lawful investigation being undertaken by the Council. 41 NW contends that the direction, properly construed, can only be invoked by the agency involved in the primary investigation, namely the Council. The direction simply does not deal with the situation of persons or bodies that are contacted by an investigating agency and asked to supply information. Accordingly, the person or body contacted must look to the ordinary law to ascertain whether they are at liberty to respond to the request. In the case of public sector agencies that are the subject of requests of the kind that occurred in this case they must have regard, in particular, to the ordinary requirements of the Privacy Act. 42 The Tribunal has examined these arguments once previously, at first instance and on appeal, in a case where the investigating agency, the University of New South Wales (UNSW), sought and was given information by Macquarie University about a person who had once been a student at Macquarie and had now obtained admission to UNSW. UNSW was concerned that it may not have had before it all relevant information as to the student's past academic history when it approved his application for enrolment and for a scholarship. See FM -v- Vice Chancellor, Macquarie University [2003] NSWADT 78; on appeal, Vice-Chancellor, Macquarie University v FM [2003] NSWADTAP 43 (where I presided). 43 The Tribunal at first instance and the Appeal Panel held that Macquarie's conduct involved the performance of an 'investigative function', and therefore it could invoke cl 4. As it transpired, both the Tribunal and the Appeal Panel ultimately found that Macquarie had contravened the Privacy Act as another requirement of cl 4 was not satisfied. 44 In this case NW's counsel, Mr Nolan, submitted that the Tribunal should not treat Macquarie as good authority on the present point. He pointed, in particular, to the relatively cursory treatment the point received in the reasons at first instance and before the Appeal Panel. It is appropriate to set out the reasoning. (At both levels the Tribunal did not have any legal submissions opposing those of Macquarie University.) 45 The Tribunal said: '67 … [T]he two phone conversations in question in these proceedings were initiated by A [the Registrar, UNSW] and took place in the course of the performance of UNSW's investigative functions arising from FM's supply of untrue and misleading information in the Application for Admission to the UNSW on 19 February 2002. Macquarie also submitted that the actions which Macquarie took in response to the requests for information made by UNSW also fall within the definition of "investigative function" in the Direction. Although UNSW conducted the investigation, according to Macquarie, the conduct of its officers constituted performance of functions which were "directly related to a lawful investigation" and were "necessary" for the conduct of that investigation. 68 Macquarie submitted that the reference in paragraph 4 of the Direction to "any of the agency's investigative functions" makes it clear that there is no requirement that these be investigative functions of the agency which seeks the benefit of paragraph 4. Macquarie said that it is carrying out an investigative function when it exercises functions directly related to and necessary for, the conduct of a lawful investigation by another relevant agency, such as UNSW. Finally, Macquarie submitted that because the disclosure occurred pursuant to the Direction, it was not necessary to obtain FM's consent to the disclosure. 69 I accept Macquarie's submission that its "investigative functions" do not necessarily have to relate to the conduct of an investigation that Macquarie itself is conducting or has conducted. [emphasis added]' 46 The Appeal Panel did not review this aspect of the Tribunal's reasons in any detail. 47 The Appeal Panel said: '112 Ms Allars submitted: '6.6 The appellant contends that the conduct of its officers in the telephone conversations and the release of the transcript [relating to the disciplinary history of the applicant] constituted performance of functions which were "directly related to a lawful investigation" and were "necessary" for the conduct of that lawful investigation. The questions which the University's officers answered in the course of the telephone conversations, and the provision of the academic transcript, were directly related to UNSW's investigation of whether the respondent had supplied it with incorrect and misleading information relating to his previous studies, in breach of his contractual obligations. The answers given by those two officers and the provision of the transcript were necessary to the conduct of that investigation, which was directly concerned with the reasons why the respondent had not completed his studies at the University. …'. …117 In our view the references in cl 4 to 'the agency's investigative functions' covered what occurred here. We are satisfied that Macquarie was engaged in carrying out an investigative function in connection with the UNSW investigation. [emphasis added]' 48 It will be seen that there was no detailed analysis of the first limb of cl 4 in either decision. In these circumstances, it is appropriate, I feel, for the Tribunal to re-examine the view expressed in the Macquarie decisions. 49 Does the first limb of cl 4 admit of the possibility that the exercise of an 'investigative function' may be protected by cl 4 even if it does not form part of any over-arching investigation by the agency? 50 Mr Nolan submits that the interpretations found in the Macquarie decisions fail to have regard to the terms of cl 4 itself and the instrument read as a whole. His submission is that the instrument read as a whole seeks only to address the circumstances of an agency that initiates an 'investigation' or a 'lawful investigation'. 51 Mr Nolan submitted that the definition of 'investigative functions' makes it crystal clear that those functions must be 'directly related' to a lawful investigation that is being conducted by the same agency. On this view, the Council is protected in respect of its request to the NSWFB in so far as it gave the NSWFB personal information relating to NW, but the response by NSWFB is not protected by cl 4. 52 If there is doubt about the natural meaning of the provisions, Mr Nolan submitted that an approach to construction should be taken which was mindful of the objectives of the legislation. The legislation seeks to control the flow of personal information about individuals. The basic rule as to disclosure is one of strict prohibition. Therefore any exception should be read narrowly rather than widely. A narrow approach to construction supports the human rights objectives of the legislation. Mr Nolan contends that had the Privacy Commissioner intended to give an immunity to public sector agencies who merely actioned a request for disclosure of information received from a third party he would have done so in clear terms. In his submission, an exception to the disclosure principle is not lightly to be granted, and should be effected in clear terms. 53 In reply Mr Flett relied on the decisions in Macquarie. Assessment 54 Clause 4 begins with the words 'a relevant agency'. The first limb of cl 4 then states that such an agency 'need not comply' with a listed IPP 'if non-compliance is reasonably necessary for the proper exercise of any of the agency's investigative functions'. An 'investigative function' (see the definition) is one of those functions that are 'directly related to a lawful investigation and that are necessary for the conduct of that lawful investigation'. Reading the first limb together with the definition, they tend to support the conclusion that the agency being referred to throughout is the agency that is engaging in the lawful investigation. Nonetheless the first limb of cl 4 is not as precise as the second limb on this point. 55 The second limb of cl 4 provides that a 'relevant agency' need not comply with a listed IPP if non-compliance 'is reasonably necessary for … its conduct of any lawful investigation' (emphasis added). Here the position is clear. A relevant agency may only decline to comply with the strict requirements of the listed IPPs so far as that is reasonably necessary for the conduct of its own lawful investigation. There is no warrant given by the provision for an agency responding to an inquiry to rely on cl 4 as a basis for not complying with an IPP when responding to the investigating agency. In a case like the present, it must look to the ordinary provisions of the Privacy Act to ascertain whether it can disclose. 56 Given that no warrant is given to an assisting or responding agency to decline to comply where the investigating agency has reached the advanced stage of conducting a lawful investigation, it is unlikely, the Tribunal considers, that the drafter - here the Commissioner - would have intended that a more relaxed standard should apply in the case of the performance of an 'investigative function'. 57 The interpretation of the first limb of cl 4 which was preferred in the Macquarie decisions does not sit comfortably with the plain meaning of the second limb. While the interpretation preferred in Macquarie may be available as a matter of semantics, it is not consistent with the approach reflected in the provision, read in its entirety. 58 It would be a very odd outcome if the drafter had intended the first limb to operate more generously than the second limb. The second limb deals with a more serious situation than the first limb. It might be thought that once an agency was engaged in a lawful investigation its needs for co-operation from other agencies would be higher than when it is merely engaged in the performance of 'investigative functions'. But the Commissioner has imposed a strict barrier. As the Tribunal sees it, cl 4 is dealing throughout with the situation of the same agency in connection with two areas of activity - the performance of 'investigative functions' and the conduct of a 'lawful investigation'. The first limb simply seeks to address a less significant aspect of the activity of the agency, as compared to the second limb. The first limb attempts, through the use of a term with a broad meaning ('investigative functions'), to cover activities that might not readily fit the definition of a lawful investigation, albeit that that definition (when read in conjunction with the definition of 'investigation') is itself quite broad. 59 Accordingly the Tribunal finds that a contravention occurred when NSWFB disclosed the personal information about NW derived from the occurrence book. 60 As these matters were also the subject of argument, I should indicate that if I am wrong in my (revised) interpretation of cl 4, I would have found that the further requirement of cl 4 was satisfied, i.e. that the disclosure which occurred was necessary to the lawful investigation undertaken by the Council. I do not agree with Mr Nolan that there was an absence of evidence upon which the Tribunal could rely in respect of this issue. 61 It is the case that NSWFB did not formally file any detailed material going to this point. The Tribunal is not bound strictly by the rules of evidence. It is engaged in an administrative inquiry based on all relevant material. 62 Included in the material is the judgment of the Industrial Relations Commission in respect of the unfair dismissal claim. There has never been any dispute in this case about the basic facts, and the context to which they belong. The Tribunal has referred to the judgment, and is satisfied from it that the Council was engaged in a lawful investigation. The issue of undertaking paid work when on sick leave was at the heart of the Council's inquiry. The NSWFB engaged in a limited disclosure strictly confined to the questions asked by Mr Smith of the Council. This is not a problematic case on this aspect of the matter, in contrast to the Macquarie case. 63 Finally, may I add that this case and the Macquarie case illustrate the desirability of their being some clarification of the direction as it applies to assisting or responding agencies. 64 It is now necessary to go on and deal with NW's submissions in relation to the appropriate order. Order 1. The respondent contravened s 18 in respect of the disclosure of 1 May 2003. 2. Matter to be relisted for determination of appropriate Order.