Pearce v AQO

Grounds of Appeal

1. A ruling as to jurisdiction is an 'ancillary' decision for the purposes of the NCAT Act (see s 4). Accordingly, this appeal is governed by s 80(2)(b) which provides that an appeal may be made as of right on a 'question of law', and, with the leave of the Appeal Panel, extend to 'other grounds'. The appeal identifies four questions of law, and seeks leave to extend the appeal to the extent that any of the grounds might be seen as involving mixed questions of fact and law.
2. The four grounds are: (1) the Tribunal was wrong in construing paragraph (d) of the definition of 'public sector agency' so broadly as to include a Minister of the Crown; (2) the Tribunal was wrong in failing to consider extrinsic materials when construing this definition; (3) the Tribunal was wrong in failing to read down the definition of 'public sector agency'; and (4) the Tribunal failed to give adequate reasons for its decision.

Grounds 1, 2 and 3

1. Grounds 1, 2 and 3 all raise issues of statutory interpretation, and we will deal with them together. The difference in view in this case might be crystallised as 'text' versus 'context', a familiar clash in the modern interpretation of the meaning of statutory provisions.
2. In Australia the conceptual antecedent of State personal data protection laws is the Commonwealth Privacy Act 1988. That Act, in its original form, laid down a series of 'information privacy principles' to be observed by Commonwealth government agencies. From the outset, the Commonwealth Act's definition of 'agency' expressly included a 'Minister'. The structure of the Commonwealth definition had, and continues to have, a hierarchical pattern. In its original form it started with '(a) Minister' and '(b) Department', and then moved on to six other types of agency. The architecture of NSW data protection legislation has many similarities to the architecture of the original Commonwealth privacy law. The Tribunal acknowledged at [32] that it has been generally accepted in the past that Ministers were not covered by the definition of 'public sector agency' now under notice. But it concluded that this understanding was incorrect, and, properly construed, the plain meaning of paragraph (d) did catch a Minister.

Relevant Principles

1. In Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56 Kirby J (in dissent as to the result) referred at [96] to five principles of statutory interpretation, three of which are relevant to the dispute in the present case (footnotes omitted): (1) The textual analysis principle: The correct starting point for any analysis of a problem of statutory interpretation is the language of the statute itself. It is not a mass of past judicial authority dealing with the same or similar statutory provisions. If there has been one principle of statutory interpretation upon which this Court has spoken with general unanimity in recent years, it has been the obligation to begin the ascertainment of the applicable law by analysing the text in issue. Any other approach fails to accord proper attention to the authentic voice in which the lawmaker has expressed the governing rule. …; (2) The contextual interpretation principle: The reading of contested statutory language must take place in the context of the entire section in question, the surrounding part of the Act and other relevant provisions of the statute, read as a whole. This principle recognises the risks that can arise in giving meaning to particular words viewed in isolation from the context in which those words appear. Necessarily, words take their colour from their context. … (3) The purposive construction principle: The Court must also give effect to the ascertained purpose of the legislature when it enacted the contested law. Statutory provisions and common law rules in this Court, in other courts of high authority and in State courts repeatedly lay emphasis on the need to go beyond a purely semantic approach to the discovery of statutory meaning. The reasons for these developments in the approach to statutory interpretation are many and varied. I will not repeat them here. They are well known. The challenge is to ensure that they are observed consistently and to avoid temptations to revert to discarded techniques. Those techniques include purely grammatical approaches to interpretive questions or approaches that give undue attention to considerations of decisional history.
2. In Hardman v Director of Public Prosecutions (NSW) [2003] NSWCA 130, a case involving the interpretation of penal provisions in a criminal statute, McColl JA (Tobias JA agreeing) said (footnotes omitted): Principles of statutory construction 64 The principles of statutory construction which govern this case are well established. 65 They were expressed with typical clarity in Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 381, 384 per McHugh, Gummow, Kirby and Hayne JJ in the following terms: "[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed.... [78] The duty of the court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning." 66 The Court will also have regard to extrinsic materials, including the "legislative history and antecedent circumstances", although resort to that history "all too rarely illuminates the meaning of the current provision." 67 Thus the courts avoid a literal approach to construction as Mason J (as he then was) made clear in K & S Lake City Freighters Pty Limited v Gordon & Gotch Limited [1985] HCA 48; (1985) 157 CLR 309 at 315 when he observed that: "Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasis the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise ... the instances of general words in a statute being so held to be constrained by their context are legion." 68 The primary object of statutory construction, therefore, is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute. Further, a legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. 69 In undertaking the exercise of construing legislation in its context to determine the legislative meaning, it is necessary to look at the compound expression rather than its disintegrated parts. 70 If the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. However if two constructions are open the court will prefer that which will avoid what it considers to be inconvenience or injustice. 71 Mere inconvenience of result in itself, however, is not a ground for departing from the natural and ordinary sense of the language read in its context. But there are cases in which inconvenience or improbability of result assists the court in concluding that an alternative construction which is reasonably open is to be preferred to the literal meaning because the alternative interpretation more closely conforms to the legislative intent discernible from other provisions in the statute.
3. The appellant's submissions referred to other statements of principle in similar terms to the above: in particular, CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ. The respondent's submissions drew attention to the statement in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 14; (2009) 239 CLR 27 at [47]: [T]he language which has actually been employed in the text of the legislation is the surest guide to the legislative intention And to the statement in the majority's reasons in Baini v R [2012] HCA 59; (2012) 246 CLR 469, at [14]: As the Court said in Fleming v The Queen (1998) 197 CLR; [1998] HCA 68 at [12], '(t)he following point is that close attention must be paid to the language' of the relevant provision because 'there is no substitute for giving attention to the precise terms' in which that provision is expressed.
4. In this case, the Tribunal's primary conclusion was that paragraph (d) possessed a plain and unambiguous meaning, such that it was not appropriate to investigate the statutory context of the provision, or to take cognisance of extraneous materials.
5. The courts have increasingly questioned the giving of meaning to words, by resort to dictionary definitions and the like, and then reading them in isolation from context. In our view, the modern approach to statutory construction no longer permits an approach which accords a meaning to a text without any consideration of context and statutory purpose. Further to the authorities cited above, the following from recent authorities emphasise this point.
6. In Griffiths v The Trustees of the Parliamentary Contributory Superannuation Fund [2012] NSWCA 231 Meagher JA (McColl and Campbell JJA agreeing) said at [10] (citations omitted): The function of a court, when construing a statute, is to give effect to the will of Parliament as expressed in the law. That task must begin with a consideration of the relevant text and have regard to its context. That 'context' includes not only other provisions of the same statute but also the existing state of the law, other statutes in pari materia, and any mischief which it can be discerned, by those and other legitimate means, the provision was intended to remedy … . However, historical considerations and extrinsic materials cannot be relied upon to displace the clear meaning of the text. That remains so even if the secondary material suggests that, through oversight or inadvertence, the intention of Parliament has not been translated to the text of the law.
7. In Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184, a case relating to the interpretation of words in a commercial contract, Leeming JA (Ward and Emmett JJA agreeing) said at [73]-[79]: 73 First, in principle, every legal text requires legal interpretation, in order to ascertain its legal meaning, although there is no real scope for dispute about the interpretation of many legal texts. … Lord Hoffmann, in a passage adopted by the joint judgment in Marley v Rawlings [2014] UKSC 2; [2014] 2 WLR 213 at [20], had said in Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2005] 1 All ER 667 at [64] that: "No one has ever made an acontextual statement. There is always some context to any utterance, however meagre." 74 Secondly, very often, language when considered in its context will have a single, clear meaning. Very often, there is no dispute as to the ordinary grammatical or literal meaning of a sentence, and no dispute that that is the legal meaning. Very often, nothing in the context will come close to displacing the ordinary grammatical meaning of the legal text. "But not always": Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78]; Taylor v Owners - Strata Plan No 11564 [2014] HCA 9 at [65]. 75 The legal meaning may diverge from its literal or grammatical meaning, especially in the (self-selectingly contestable) cases that reach courts. Words do not have a "natural" meaning that can be determined in isolation. As Lord Hoffmann said in Charter Reinsurance Co Ltd v Fagan [1997] AC 313 at 391, approved in Campbell v R [2008] NSWCCA 214; 73 NSWLR 272 at [48] (Spigelman CJ, Weinberg AJA and Simpson J agreeing) and Dale v The Queen [2012] VSCA 324 at [73] (Weinberg, Harper and Whelan JJA): "[I]n some cases the notion of words having a natural meaning is not a very helpful one. Because the meaning of words is so sensitive to syntax and context, the natural meaning of words in one sentence may be quite unnatural in another. Thus a statement that words have a particular natural meaning may mean no more than that in many contexts they will have that meaning. In other contexts, their meaning will be different but no less natural." … 77 … [T]o say that a legal text is "clear" reflects the outcome of that process of interpretation. It means that there is nothing in the context which detracts from the ordinary literal meaning. It cannot mean that context can be put to one side; …".
8. As we see it, the primary point being made in the passages quoted is that the ascertainment of the true meaning of a statutory expression must start with consideration of the relevant text in its statutory context. If that analysis does not clearly resolve the matter, it is permissible to refer to secondary materials and historical considerations to gain assistance in that task. See further, Interpretation Act 1987, s 34.
9. The respondent referred to the principle that statutes conferring rights or protections, such as ones with a human rights dimension (as is seen in anti-discrimination and privacy laws), should be construed beneficially. See, for example, Re McComb [1999] VR 311 at [22], and IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 11. But equally, this principle does not allow for the substitution of a meaning that cannot be derived from the words used, construed in context. The principle of beneficial construction does allow the making choices as between permissible meanings in favour of the meaning that most advances the objective of the law, and best addresses the mischief the law was designed to remedy: Varley v Attorney-General (NSW) (1987) 8 NSWLR 30 at 46 per Hope JA; approved, Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at [60].
10. The appellant also relied on two amending laws as supporting its interpretation of the meaning to be given to paragraph (d). The first is the amendment made in 2009, and reflected in s 15(6) of the PPIP Act, which expressly states that a Minister falls within the meaning of 'public sector agency' for the purpose of the operation of the IPP that allows for the alteration of personal information. The second is the amendment made in 2013 which expressly extended the meaning of 'public sector agency' to cover the staff of a Minister's office, but did not refer to a Minister as such. See, respectively, Privacy and Government Information Legislation Amendment Act 2010 No 71, Sched 1 [2]; Members of Parliament Staff Act 2013 No 41.
11. It is well established that it is permissible to take account of later amendments to a principal law as an aid in seeking to construe the meaning of the law's original provisions, where original words lack clarity as to their meaning or scope, or are ambiguous, but not where the later law simply involves an erroneous assumption as to the meaning of the prior law: Deputy Federal Commissioner of Taxes (SA) v Elder's Trustee and Executor Co Ltd (1936) 57 CLR 610. See further, Grain Elevators Board (Vic) v Dunmunkle Shire (1946) 73 CLR 70 at 86 per Dixon J; Allina Pty Ltd v Federal Commissioner of Taxation (1991) 28 FCR 201 at 212; Hepples v Commissioner of Taxation (Cth) (1992) 173 CLR 492 at 539-540; Hooker v Gilling (2007) MVR 136 at [43]-[44] per McColl JA (Ipp and Basten JJA agreeing); Independent Commission Against Corruption v Cuneen [2015] HCA 14 at [113] per Gageler J (dissenting as to the result).

Consideration

1. The definition of 'public sector agency' in the laws under notice is essentially hierarchical in form, in the way seen in the Commonwealth Privacy Act definition. As previously noted, the Commonwealth definition had as its first category a 'Minister' and in contrast, the NSW definition has as its first category a 'Department'. In each case the types of bodies that are then listed are of descending significance in the hierarchy of government. This approach to the drafting of the provision is, we think, a strong textual indication that in the NSW laws, a 'Minister' was not meant to be covered by categories listed in the definition of 'public sector agency' that are subordinate in the list to 'Department'.
2. The NSW definition has five readily-identifiable categories of administrative agency - those dealt with by categories (a), (b), (c), (e), and (f). Category (g) deals with the particular problem of the extent to which the PPIP Act and the HRIP Act apply to private sector contractors that undertake data processing for government. Their activities fall subject to the Act if they are prescribed by regulation for the purposes of the definition. Because of the reliance of this provision on prescription, again bodies that fall into this category are readily able to be identified.
3. On the other hand, in order to identify the bodies that fall within paragraph (d) a further investigation needs to be undertaken into the question of whether the body is subject to an audit control of the type specified.
4. There is a well understood distinction between the role of a Minister of State and the administrative departments that are subject to the oversight or direction of the Minister. It is reflected in the Macquarie Dictionary definition of Minister (4th ed. 2005), 'Minister - a person appointed by (or under the authority of) the sovereign or executive head of government to some high office of state, especially to that of head of an administrative department'. On its face, the definition of 'public sector agency' is concerned with bodies connected with the day to day administration of government, and paragraph (d) is seeking to pick up the miscellany of committees and bodies that form part of the administration of government that do not neatly fall into the categories the subject of the other parts of the definition of 'public sector agency'.
5. Further, at a number of points the Parliament has sought to delineate with some care relationships and areas of government that are subject to the operation of the Act. Section 62 of the PPIP Act and s 68 of HRIP Act impose criminal sanctions on 'public sector officials' in relation to the corrupt disclosure or the corrupt use of personal and health information. 'Public sector official' is a defined term (s 3, PPIP Act; s 4, HRIP Act). The definition covers, among others, persons 'appointed' to a statutory office by the Governor, or a Minister' ((a)); 'a person who is an officer of the Legislative Council or the Legislative Assembly or who is employed by (or who is under the control of) the President of the Legislative Council or the Speaker of the Legislative Assembly, or both' ((e)).
6. These provisions point to an intention, at least in relation to corrupt use and disclosure sanctions, to differentiate between the roles of the Governor, a Minister, and the presiding officers of the Parliament on the one hand and, on the other hand, the role of those who are appointed by them to perform statutory functions or are employed under them. By parity of reasoning with the conclusion reached by the Tribunal in this case in relation to Ministers, they would be a 'public sector agency' within the meaning of the PPIP and HRIP Acts if they are subject to audit controls of the kind stipulated in paragraph (d), as some or all of them would most likely be.
7. Elsewhere in the laws there are detailed provisions conferring on certain agencies exemption from compliance with the IPPs and the HPPs (see PPIP Act, Part 2, Div 3, and the equivalent exemptions located within the text of the HPPs at Schedule 1 of HRIPA). One example is the exemption from compliance given to 'law enforcement agencies' and in respect of 'law enforcement functions'. It is quite possible that a Minister might be active in making a law enforcement communication. The definition of 'law enforcement agency' does not include a Minister. If category (d) has the meaning accorded to it by the Tribunal, the anomalous situation would ensue that a law enforcement communication by a Minister would be contestable, when the same communication by a 'law enforcement agency' within that Minister's portfolio would not be contestable. Similar examples can be given in relation to the other exempt areas.
8. In addition, as the appellant noted, there is the reference in item (iv) of paragraph (d) to accounts 'with respect to which the Auditor-General may exercise powers under a law relating to the audit of accounts if requested to do so by a Minister of the Crown'. This separation of the roles of the Auditor-General and the Minister points, arguably at least, to an intention that a Minister of the Crown, is not otherwise meant to be affected by this provision. The drafting tends to support an understanding that a Minister of the Crown stands outside the sphere of the 'persons or bodies' covered by the provision.
9. This is a case where there is, we consider, a lack of clarity as to the scope of the provision. There is no express reference to Ministers in any of the primary parts of the definition of 'public sector agency', despite the centrality of Ministers to the system of executive government. It is therefore informative and appropriate to have regard to the two sets of later amendments to which we have referred.
10. Since the passage of the Freedom of Information Act 1989 (FOI Act) individuals in this State have been able to apply for access to the personal records held about them by government agencies and by Ministers. In addition they have had the right then to apply for 'amendment' of those records if they are incomplete, incorrect, out of date or misleading: see ss 16 and 39 of the FOI Act as enacted. The IPPs (enacted 1998) and the HPPs (enacted 2002) also gave rights of access and 'alteration' in relation to the personal and health information the subject of those laws. Prior to the commencement of the Government Information (Public Access) Act 2009 (GIPA Act) the opportunity was taken to rationalise the overlap that had now developed for public sector agencies as between the 'alteration' right found in the new privacy laws and the 'amendment' right given by the FOI Act.
11. The FOI Act's provisions requiring Ministers and agencies to deal with applications for amendment personal records were not taken forward into the GIPA Act, which commenced on 1 July 2010. Instead, they were transferred to the PPIP Act. As noted, the FOI Act applied to Ministers as well as agencies. Section 15 of the PPIP Act is the IPP governing the 'alteration of personal information'. As a result of the amending legislation passed in 2010 to which we referred earlier, s 15(6) now provides at s 15(6): In this section (and in any other provision of this Act in connection with the operation of this section), public sector agency includes a Minister and a Minister's personal staff.
12. This amendment clearly points to a legislative understanding that the PPIP Act's definition in its original form, and, similarly the HRIP Act's definition, of 'public sector agency' did not cover Ministers. The related amendments that except Ministers from the usual obligation to undertake an internal review, and allow for requests for amendment to go straight to the Tribunal for review reflect a similar understanding, see PPIP Act s 53(1A) and s 55(1A).
13. The Members of Parliament Staff Act 2013 amended both laws to add a further category to the definition of 'public sector agency': (a1) the office of a political office holder within the meaning of the Members of Parliament Staff Act 2013, being the office comprising the persons employed by the political office holder under Part 2 of the Act. (emphasis added)
14. It will be seen that the provision refers to an office as 'comprising the persons employed by a political office holder'. The definition section, s 3, was amended to give as the first meaning of 'political office holder' - 'a Minister'. The provision has its origins in recommendations of the NSW Law Reform Commission for Ministers to be included within the definition of 'public sector agency'. The NSW Commission's inquiry was part of a joint State/Commonwealth inquiry. The Commission noted the inconsistency with the Commonwealth privacy regime in making its recommendation: Protecting Privacy in New South Wales (May 2010), Report No 127 [R 2.6]; and see further, the Explanatory Memorandum for the Members of Parliament Staff Act. The amendment, therefore, represents a partial adoption of the recommendation of the NSWLRC.
15. As noted by the appellant, while the HRIP Act does not contain an equivalent of s 15(6) or of paragraph (a1) in its definition of 'public sector agency' that does not alter the cognate character of the two laws, the operation of which is expressly connected by s 21 of the HRIP Act.
16. The general words used in paragraph (d) are, we consider, constrained by their context. Paragraph (d) should be read so as not to include within its scope a Minister. The provision is concerned only with 'persons or bodies' that have functions within the ordinary administration of government, and belong to a portfolio administered by a Minister.
17. In light of this conclusion, it is unnecessary to deal with other submissions of the appellant arguing for a narrow construction of particular words and phrases in the text of paragraph (d).
18. For these reasons we uphold the appeal.

Ground 4

1. The appellant objected to the adequacy of the Tribunal's reasons. Given our conclusion in relation to the primary grounds of appeal, it is not necessary to deal at length with this ground. We will simply make some short observations.
2. The Tribunal's reasons commenced by providing the factual background to the review application (similar to the summary given at the beginning of these reasons). The reasons then referred to the parties' submissions at some length, mainly be means of setting out long verbatim extracts from each set of submissions. The reasons then moved to a brief 'discussion' of the submissions. The substantive consideration of the submissions appears at paras [32]-[42], and is perfunctory in style. The critical paragraph is expressed as follows: For the reasons argued by Ms Lucy, I am satisfied that the Ministers' office is caught by paragraph (d) definition of "public sector agency". It follows that the Minister is also covered by that provision and is therefore a "public sector agency" for the purposes of the PPIP Act and HRIP Act.
3. It is undesirable, as we see it, for an author of a decision to extract from competently-prepared submissions slabs of long, closely-reasoned passages that have multiple points, and then simply say that the author 'accepts' one set of submissions 'for the reasons' given in those submissions. The author should explain in his or her own terms the arguments that are accepted, and why, and deal with any replies made to those arguments by the losing party.

Disposal

1. The respondent submitted that if we find, as we now have, that the Tribunal did err in concluding that the Minister fell within the definition of public sector agency, we should nonetheless uphold the Tribunal's order remitting the matter for internal review, and amend the remittal to confine it to the conduct of the Minister's office, as distinct from the Minister. In support the respondent noted that the appellant had not challenged the Tribunal's interpretation of paragraph (d) as it applied to the Minister's office. The submissions noted that the respondent when he lodged his application for review was not legally represented. He chose to name the respondent by his personal name, and did not refer to the Minister's office. The submissions noted, in support of amending the order of remittal, that the chief of staff of the Minister's office responded to the application.
2. If we were to accede to this request, the respondent would not be faced with the hurdle that would otherwise arise in progressing his complaint - the statutory bar that only allows review applications of the present kind to be made within six months of the time when the applicant first became aware of the conduct, unless the agency itself agrees to extend the time for making the application: see PPIP Act, s 53(3)(d)).
3. This request was opposed by the appellant. The appellant submitted that the making of a remittal order of the kind proposed would amount to substituting a new respondent to the review application in order to remedy an absence of jurisdiction in relation to an existing respondent.
4. In our view, it is too late in the proceedings for such a course to be adopted. While it is true that the respondent was unrepresented at the time of lodgment of the review application, the Tribunal file reveals that he has been represented since 9 July 2013. The question of adding the Minister's office as a separate respondent could have been pressed some time ago.
5. It follows from our conclusion in relation to Grounds 1 to 3 that the application for review is outside the jurisdiction of the Tribunal, and must be dismissed.

Order 1. Appeal allowed. 2. Application for review 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: 11 August 2015