The applicant, Lieutenant Colonel Sinclair, is a psychologist in the Australian Defence Force. On 4 October 2010, she wrote a letter to the Psychology Council at its request, in response to a complaint made about her professional conduct as a psychologist by Sergeant Scott, the second respondent.
On 10 July 2015, Sergeant Scott sought access to that letter under the Government Information (Public Access) Act 2009. The Council consulted with Lieutenant Colonel Sinclair, who objected to the release of the letter. On 22 July 2015, the Council decided that there was no overriding public interest against disclosure of the letter to Sergeant Scott, and determined to grant him access to the letter, subject to redactions of personal information made under section 74 of the Act. The appropriateness of those redactions is not in dispute.
Lieutenant Colonel Sinclair seeks review of the Council's decision of 22 July 2015 to grant access to her letter of 4 October 2010.
She says that an overriding public interest against disclosure is conclusively presumed by section 14(1) of the Act, because:
disclosure of her letter is prohibited by the "overriding secrecy laws" listed in clause 1, Schedule 1; and
her letter constituted "excluded information" of the Health Care Complaints Commission, which has not consented to its release: clause 6(1) of Schedule 1.
In the alternative, she says that Sergeant Scott's application for access to the letter was not valid, because her letter of 4 October 2010 constituted 'excluded information' as defined: section 43.
In the further alternative, she submits that the public interest considerations against disclosure outweigh those in favour, because granting access to the letter would expose her to a risk of harm, serious harassment or serious intimidation in terms of section 14, clause 3(f), having regard to the vexatious nature of Sergeant Scott's complaints and their repetitive nature.
The Council submitted to any order of the Tribunal save as to costs, and made submissions for the assistance of the Tribunal. It submitted that the conclusive presumption of an overriding public interest against disclosure does not operate in this case. It says the secrecy provisions of clause 1(1) of Schedule 6 do not apply, and that the letter of 4 October 2010 did not constitute excluded information of the Health Care Complaints Commission. That is because, it says, the letter was obtained by the Council, and not by the Health Care Complaints Commission in the exercise of any of its functions. The Council invited the Tribunal to infer from the correspondence before it (considered below) that on 3 August 2010 the Health Care Complaints Commission referred the complaint to the Council for consideration pursuant to section 25B of the Health Care Complaints Act 1993, and that to the extent the Health Care Complaints Commission concerned itself in the further conduct of the complaint, it did so without power, and in error.
The Council concedes that, if there was no such referral, the letter did constitute excluded information of the Health Care Complaints Commission.
If the letter did not attract the secrecy provisions, or constitute excluded information, the Council submits that its decision to grant access should be affirmed, because the public interest considerations against disclosure do not outweigh those in favour of it.
Sergeant Scott submits that the Council's decision to grant access should be affirmed. He adopts the Council's submissions that the letter of 4 October 2010 did not attract the secrecy provisions, or constitute excluded information of the Health Care Complaints Commission, and that the public interest considerations against disclosure do not outweigh those in favour of it. He told the Tribunal that he believed that, in writing the letter, Ms Sinclair had made disclosures contrary to a Defence Regulation. It is reasonable to infer that he intends to make some further complaint about her conduct in an appropriate forum.
[2]
Issues for determination
The issues for determination may be summarised as follows:
1. Whether an overriding public interest against disclosure is conclusively presumed by section 14(1), either because the Applicant's letter of 4 October 2010:
1. attracted the secrecy provisions in clause 1 of Schedule 1; or
2. constituted 'excluded information' of the Health Care Complaints Commission: clause 6, Schedule 1.
1. Whether the access application was invalid because it sought access to excluded information of the Psychology Council: section 43(1).
2. If not, whether the public interest considerations against disclosure outweigh those in favour: section 13.
As the Applicant seeks review of a decision to grant access, she bears the onus of proving that there is an overriding public interest against disclosure: section 105(2), Government Information (Public Access) Act 2009.
[3]
Background
The background facts are not in dispute. In 2007, Captain Sinclair (as she then was) and Sergeant Scott were both stationed at Singleton. Sergeant Scott was a member of the Special Forces Training Centre. He consulted Captain Sinclair in her capacity as a psychologist on several occasions, to deal with psychological issues he was experiencing. To his knowledge, Captain Sinclair was then a personal friend of his partner, Rachel.
The relationship between Sergeant Scott and Rachel eventually broke down. In December 2009, she applied for an apprehended violence order in respect of him. Her application was opposed by Sergeant Scott. In March 2010, the police served on him a brief of evidence in support of the application. It included a copy of a Facebook message sent to Rachel by Captain Sinclair in a personal capacity. That message included Captain Sinclair's observation that Sergeant Scott 'sounds quite unstable'.
By letter dated 1 July 2010, Sergeant Scott complained to the Psychologists Registration Board about Captain Scott's conduct in making this Facebook communication. That same day, the Board had been superseded by the Psychologists Council under new legislation. The letter of complaint appears to have been received by the Council on 6 July 2010.
By letter dated 12 July 2010 addressed to the Board, Sergeant Scott corrected the dates on which he had consulted the Applicant. This letter appears to have been received by the Council on 15 July 2010.
On 3 August 2010, the complaint was discussed at a meeting of the Council in consultation with the Health Care Complaints Commission.
By letter dated 22 September 2010, the Council informed Captain Sinclair as follows:
"The Council has received the attached complaint against you from Alistair Scott.
The complaint lodged against you was considered at a meeting of the Psychology Council of New South Wales in consultation with the Health Care Complaints Commission held on 3 August 2010. At the meeting it was agreed that the matter did not warrant investigation by the Health Care Complaints Commission and would be more appropriately dealt with by the Council. Following this decision, the Council considered the matter further and determined to write to you seeking your response to the complaint. ….
It would be appreciated if you would provide a written response prior to 4 October 2010 so that it may be placed on the agenda for the next meeting of the Council to be held on 12 October 2010. …
I provide the following additional information to inform you of the process in dealing with the complaint to date.
At the meeting on 3 August 2010 it was jointly agreed by the Council and the Health Care Complaints Commission not to refer the complaint to the Health Care Complaints Commission for investigation. This decision followed an assessment that pursuant to s23 of the Health Care Complaints Act 1993, the complaint did not warrant investigation by the Commission on the basis that the complaint did not appear to:
i. raise a significant issue of public health or safety, or
ii. raise a significant question as to the appropriate care or treatment of a client by a health service provider, or
iii. if substantiated, would provide ground of disciplinary action against a health practitioner, or
iv. if substantiated, would involve gross negligence on the part of the health practitioner, or
v. if substantiated, would result in the health practitioner being found guilty of an offence under Division 3 of Part 2A of the Public Health Act 1991.
The complaint was subsequently referred to the Council who considered the matter further and determined to seek your response to issues raised by the complainant. Future deliberations of this Committee will occur having regard to the complaint and the response to be provided by you.
Please note that the Health Practitioner Regulation National Law (NSW) commenced on 1 July 2010 at which time the Psychologists Act 2001 was repealed and the NSW Psychologists Registration Board ceased to exist. After 1 July 2010 all complaint matters will be dealt with under the National Law (NSW) by the newly formed Psychology Council of New South Wales.
On 4 October 2010, Captain Sinclair complied with the Council's request by providing the Council with a written response. That response has never been provided to Sergeant Scott.
By letter dated 25 October 2010, the Council informed Major Sinclair (as she then was) as follows:
"At its meeting on 12 October 2010 the Psychology Council of NSW in consultation with the Health Care Complaints Commission (HCCC) considered your response [of 4 October 2010]. It was jointly agreed by the Council and the Health Care Complaints Commission that no further action will be taken in relation the complaint.
Please be aware that the complainant has the right to seek a review of the decision by the Council as well as the Health Care Complaints Commission in relation. [sic]"
By letter of the same date, the Council advised Sergeant Scott in similar, though not identical, terms.
By email communication dated 28 October 2010, Sergeant Scott sought access to Major Sinclair's response of 4 October 2010, advising that he intended to challenge the decision to take no further action.
By letter dated 16 November 2010, the Council sought Major Sinclair's consent to the release of her letter. On the same day she declined to consent, on the grounds that the complaint was vexatious, and constituted a personal vendetta which made her feel threatened, and to fear for her safety and that of her family.
By email communication dated 24 November 2010, the Council's Acting Executive Officer advised Sergeant Scott as follows:
"On 12 October 2010 the Council and the Health Care Complaints Commission considered Major Laura Sinclair's response and the ADF's internal investigation report. The Council was satisfied with the response and agreed with the Health Care Complaints Commission that no further [action] be taken."
By email communication dated 10 June 2015, Sergeant Scott made a further complaint about Ms Sinclair to the Psychology Council, based on further evidence that had come to his attention since 2010.
By letter dated 25 August 2015, the Health Care Complaints Commission told Ms Sinclair that it had received the complaint, and that in consultation with the Council, the Health Care Complaints Commission had decided to take no further action in relation to it, because "the complaint is unlikely to lead to disciplinary action against you and the events occurred more than five years ago".
By letter of the same date, the Health Care Complaints Commission similarly advised Sergeant Scott.
On 2 July 2015, Sergeant Scott applied to the Council for access to Ms Sinclair's letter of 4 October 2010, pursuant to the Government Information (Public Access) Act 2009. Ms Sinclair objected to access being granted.
On 22 July 2015, the Council notified Sergeant Scott of its decision to grant access to the letter, redacted in order to remove her personal information, on the basis that there was no overriding public interest against disclosure.
Lieutenant Colonel Sinclair then commenced these proceedings, seeking review of the Council's decision to grant access.
[4]
Consideration
The evidence provided in the Council's letter of 22 September 2010 (extracted above) is uncontradicted. I am satisfied that on 3 August 2010 the complaint was considered jointly by the Psychology Council and the Health Care Complaints Commission. At that meeting, the Commission determined that the matter did not warrant further investigation by it, and later referred the matter to the Psychology Council. It was the Council itself which decided to seek a written response from Captain Sinclair, and did so by letter dated 22 September 2010.
The evidence provided by the Council's letter of 22 September 2010 is also uncontradicted, and is consistent with the advice given by letter dated 25 October 2010. I am satisfied that on 12 October 2010 the Council and the Health Care Complaints Commission jointly considered Major Sinclair's response of 4 October 2010, and agreed that no further action be taken. Notwithstanding the agreement of the two agencies on 3 August 2010 that Sergeant Scott's complaint should be handled by the Council and not referred for investigation to the Health Care Complaints Commission, it is apparent that the Commission continued to be involved in the consideration of the complaint on 12 October 2010, and on that date received from the Council, and considered, Major Sinclair's letter dated 4 October 2010.
[5]
Overriding secrecy laws
The Health Care Complaints Commission is a statutory body representing the Crown: section 75, Health Care Complaints Act 1993. Section 4 of the Government Information (Public Access) Act 2009 provides that 'agency' includes a 'public authority'. Schedule 4 of that Act provides that public authorities include statutory bodies representing the Crown. It follows that the Commission is a 'public authority' and an 'agency' for the purposes of the Act.
Clause 6(1) of Schedule 4 provides that "the Regulations may declare that a specified agency (the subsidiary agency) is not to be regarded as a separate agency and instead is to be regarded for the purposes of this Act as part of and included in another specified agency (the parent agency)."
Schedule 3 of the Government Information (Public Access) Regulation 2009 provides that the Psychology Council of NSW is declared to be part of the Ministry of Health.
Schedule 3 makes no reference to the Health Care Complaints Commission. No evidence has been provided by any party to these proceedings, or submission made, that the Health Care Complaints Commission is the same agency as the Ministry of Health, or included within it. For the purposes of this decision, they shall be regarded as separate agencies.
Section 14(1) of the Act provides:
"It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1."
Subclause 1(1) of Schedule 1 provides:
"1. Overriding secrecy laws
(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information the disclosure of which is prohibited by any of the following laws (which are referred to in this Act as overriding secrecy laws), whether or not the prohibition is subject to specified qualifications or exceptions and whether or not a breach of the prohibition constitutes an offence:
….
Health Care Complaints Act 1993 …"
Section 99A of the Health Care Complaints Act 1993 relevantly provides:
(1) If a person discloses information obtained in exercising a function under this Act and the disclosure is not made:
(a) with the consent of the person to whom the information relates, or
(b) in connection with the execution and administration of this Act, or
(c) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or
(d) with other lawful excuse,
the person is guilty of an offence.
Maximum penalty: 10 penalty units or imprisonment for 6 months, or both.
(2) A person may not be compelled in any legal proceedings to give evidence about, or produce documents containing, any information obtained in exercising a function under this Act.
In effect, the Applicant submits that her letter was obtained in the exercise of a function under the Health Care Complaints Act 1993, and therefore falls within the overriding secrecy provisions of Schedule 1.
Section 80 of that Act provides that the functions of the Health Care Complaints Commission include:
(a) to receive and deal under this Act with the following complaints:
complaints relating to the professional conduct of health practitioners
complaints concerning a health service that affects, or is likely to affect, the clinical management or care of individual clients
complaints referred to it by a professional council under the Health Practitioner Regulation National Law (NSW),
(b) to assess those complaints and, in appropriate cases, to investigate them, refer them for conciliation or deal with them under Division 9 of Part 2 …"
A 'health practitioner' is defined in section 4 to include persons providing mental health services. I am satisfied that the Applicant was a health practitioner for the purposes of that definition.
Section 11 of that Act provides:
"If, in accordance with the Health Practitioner Regulation National Law (NSW), a professional council notifies the Commission of a complaint made under that Law, the complaint is taken to have been made in accordance with this Act to the Commission."
By consulting with the Health Care Complaints Commission in relation to Sergeant Scott's complaint on 3 August 2010, the Council notified the Health Care Complaints Commission of that complaint. By operation of section 11, that complaint is taken to have been made to the Health Care Complaints Commission.
Section 13(1) provided for consultation between the two bodies in the following terms:
"Before determining, as a result of the assessment of a complaint, whether to investigate a complaint, to refer the complaint for conciliation, to deal with the complaint under Division 9 or to discontinue dealing with the complaint, the Commission must consult with the appropriate professional council (if any), subject to this section."
In consulting with the Council on 3 August 2010 and again on 12 October 2010, I am satisfied that the Health Care Complaints Commission was acting, or purporting to act, pursuant to the obligation imposed upon it by section 13(1).
Section 13 relevantly provided for the outcomes of consultation in the following way:
1. If either the Commission or the appropriate professional council is of the opinion that a complaint (or any part of a complaint) should be investigated, it must be investigated.
2. If:
3. (a) neither the Commission nor the appropriate professional council is of the opinion that the complaint (or part) should be investigated, but
4. (b) either is of the opinion that it should be referred to the professional council for consideration as to whether the professional council should take any action under the Health Practitioner Regulation National Law (NSW) (such as performance assessment or impairment assessment),
5. it must be referred to the professional council under section 25B.
6. (2A) …
7. If:
8. (a) neither the Commission nor the appropriate professional council is of the opinion that the complaint (or part) should be investigated or referred to the professional council, but
9. (b) either is of the opinion that it should be referred for conciliation and the Registrar considers that it is appropriate for conciliation,
10. the Commission is to refer the complaint for conciliation under Division 8.
Section 23(1) provided:
"The Commission must investigate a complaint:
1. if, under section 13 (1), the appropriate professional council is of the opinion that the complaint should be investigated, or
2. if, following assessment of the complaint, it appears to the Commission that the complaint:
1. raises a significant issue of public health or safety, or
2. raises a significant question as to the appropriate care or treatment of a client by a health service provider, or
3. if substantiated, would provide grounds for disciplinary action against a health practitioner, or
4. if substantiated, would involve gross negligence on the part of a health practitioner, or
5. if substantiated, would result in the health practitioner being found guilty of an offence under Division 3 of Part 2A of the Public Health Act 2010."
[6]
Excluded information
Clause 6(1) of the Schedule 1 provides as follows:
"It is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of."
Schedule 4 provides relevantly:
"excluded information of an agency specified in Schedule 2 means information that relates to any function specified in that Schedule in relation to the agency."
Schedule 2 relevantly provides:
"Note. Information that relates to a function specified in this Schedule in relation to an agency specified in this Schedule is excluded information of the agency. Under Schedule 1 it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information of an agency (unless the agency consents to disclosure). Section 43 prevents an access application from being made to an agency for excluded information of the agency.
…
The Health Care Complaints Commission - complaint handling, investigative, complaints resolution and reporting functions (including any functions exercised by the Health Conciliation Registry and any function concerning the provision of information to a registration authority or a professional council (within the meaning of the Health Care Complaints Act 1993) relating to a particular complaint)."
If the Tribunal is satisfied that the letter of 4 October 2010 related to a 'function concerning the provision of information to … a professional council …. relating to a particular complaint', the letter would constitute 'excluded information' attracting the conclusive presumption in clause 6(1) of Schedule 1.
It is not in dispute that the Applicant provided her letter of 4 October 2010 to the Council in relation to Sergeant Scott's complaint. The issue is whether the letter related to a 'function' of the relevant kind. The phrase, "- complaint handling, investigative, complaints resolution and reporting functions" directly follows the words, "Health Care Complaints Commission". Read in context, the word "functions" means functions of the Commission. The words in brackets which follow, commencing with "including", further describe the functions of the Commission. They do not, explicitly, refer to functions of any other agency, including the Psychology Council.
The issue for determination is whether the letter of 4 October 2010 question related to a function of the Commission. It was neither written nor obtained at the request of the Commission, but at the request of the Council.
However, clause 6(1) is to be interpreted having regard to the words in the note inserted by Parliament. That note includes, "Information that relates to a function specified in this Schedule…". The words "relates to" are of the "widest import": see Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130 [per Montgomery SM at paragraphs 47 and 59], and the cases there cited.
In interpreting a statutory provision, a construction that would promote the purpose or object underlying the Act, is preferred to a construction that would not: section 33, Interpretation Act 1987. Section 3 of the Government Information (Public Access) Act 2009 sets forth the following objects.
"… to open government information to the public by:
(a) authorising and encouraging the proactive public release of government information by agencies, and
(b) giving members of the public an enforceable right to access government information, and
(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure."
In stating the objects in this way, the Parliament has emphasised that the existence of an overriding public interest against disclosure is a matter which should result in restricting access to government information, even if access might otherwise be granted. The objects give no support to a restrictive interpretation of the phrase, "relates to", in the note to clause 6(1). On the contrary, they are consistent with it being given its full and ordinary meaning.
As I have found, the Council's request for the letter of 4 October 2010 was not made in exercise of a function under the Health Care Complaints Act 1993, but rather in exercise of a function under the Health Practitioner Regulation National Law. However, that request resulted directly from the referral to it by the Health Care Complaints Commission under section 25B of its Act. That was a referral for consideration as to what action, if any, to take under the National Law. The consideration itself resulted directly from the referral, and caused the Council to make inquiry about the complaint. That inquiry took the form of the request of 22 September 2010 for a response to the complaint.
In summary, there was a direct chain of causation between the Health Care Complaints Commission's referral, and the Council's request for the letter. To that extent, the letter produced by Captain Sinclair in response to the Council's inquiry "related to" the exercise by the Health Care Complaints Commission of a function under section 25B.
Giving the phrase, "relates to" its ordinary meaning, and having regard to the fact that the Council's request for the letter resulted directly from the referral by the Health Care Complaints Commission under section 25B, I am satisfied that the letter of 4 October 2010 related to the exercise by the Health Care Complaints Commission of a "function concerning the provision of information to … a professional council … relating to a particular complaint" within the meaning of Schedule 2.
It follows that the letter of 4 October 2010 constitutes "excluded information" as defined in Schedule 4, and attracts the conclusive presumption in clause 6(1) of Schedule 1 - namely, the conclusive presumption that there is an overriding public interest against its disclosure.
[7]
Whether access application invalid
Section 43(1) provides:
"(1) An access application cannot be made to an agency for access to excluded information of the agency.
Note. Information is excluded information of an agency if it relates to any function specified in Schedule 2 in relation to the agency.
(2) An application for government information is not a valid access application to the extent that the application is made in contravention of this section."
Section 43 only operates where access is sought to excluded information of the agency to the which the application for access is made. In this case, it can only operate if the letter was excluded information of the Psychology Council.
As indicated, I am satisfied that the letter of 4 October 2010 constituted excluded information of the Health Care Complaints Commission. However, 'excluded information' is defined to mean information relating to the agencies specified in Schedule 2. They do not include the Council.
It follows that the letter did not constitute excluded information of the Psychology Council. I am not satisfied that the access application was rendered invalid by operation of section 43.
[8]
Correct and preferable decision
The task of the Tribunal, on review of a decision to grant access, is "to decide what the correct and preferable decision is having regard to the material then before it": Administrative Review Act 1997.
In this case, the Tribunal has determined that the letter in question constituted "excluded information" of another agency. In such cases, subclause 6(2) of Schedule 1 to the Government Information (Public Access) Act 2009 provides:
"Before an agency decides an access application by refusing to provide access to information on the basis that it is excluded information of another agency, the agency is required to ask the other agency whether the other agency consents to disclosure of the information."
The refusal of such a consent is not reviewable under Part 5 of the Act: clause 6(3).
Section 63(3)(d) of the Administrative Review Act 1997 empowers the Tribunal "to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal."
Where an overriding public interest against disclosure exists, it is open to an agency to decline access to the information. However, where the information to which access is sought is excluded information by operation of clause 6(1), as in this case, the correct and preferable decision is to determine the access application only after the Health Care Complaints Commission has been asked whether it consents to its disclosure. In those circumstances, the most appropriate course is to set aside the Psychology Council's decision of 22 July 2015 and remit the matter to it for reconsideration, and to recommend that, before doing so, it ask the Health Care Complaints Commission whether it consents to the disclosure.
The Tribunal makes the following orders:
1. The decision of the First Respondent made on 22 July 2015 is set aside.
2. The matter is remitted to the First Respondent for reconsideration.
3. The First Respondent is to file and serve a copy of its reconsidered decision on or before 14 February 2017.
4. In reconsidering the matter, the First Respondent is to ask the Health Care Complaints Commission (if it has not already done so) whether it consents to access, and take into account the Tribunal's finding that the Applicant's letter of 4 October 2010 is "excluded information" of the Health Care Complaints Commission, in respect of which there is a conclusive presumption of an overriding public interest against disclosure.
5. The Registrar is requested to list the matter for case conference on 28 February 2017.
6. Grant leave to the First Respondent to apply to vary these orders if, prior to 21 December 2016, it had already asked the Health Care Complaints Commission whether it consents to access, provided that it first files and serves evidence of that request and the response.
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: 13 January 2017
In respect of consultations in relation to complaints like that made by Sergeant Scott, section 13 effectively provided for three alternative outcomes: investigation, referral to the Council under section 25B, or conciliation. Section 23(1) obliged the Commission to investigate if the Council considered it should be, or the Commission was of the view that any of subparagraphs (i) to (v) above applied.
Neither investigation, nor conciliation, occurred. The reasons for declining to investigate given in the letter of 22 September 2015 closely followed paragraphs (i) to (v) of section 23(1) above. In other words, the grounds relied on by the Commission for not investigating, as reported in the Council's letter of 22 September 2010, were that the grounds which would have required an investigation set forth in section 23(1) were not met. I am satisfied that the Commission decided not to investigate, and not to conciliate, in accordance with sections 13 and 23.
The only other option was a referral to the Council under section 25B, which provided as follows:
"(1) Following the assessment, the Commission may refer a complaint to the appropriate professional council (after consultation with that council) if it appears that the complaint (or part) should be referred to the professional council for consideration as to whether the professional council should take any action under the Health Practitioner Regulation National Law (NSW), such as performance assessment or impairment assessment.
Note. Section 13 (2) requires the Commission to refer a complaint to the professional council if either the Commission or the professional council is of the opinion that it should be referred.
(2) Despite section 27 (3), the Commission must discontinue dealing with a complaint (or part) under that section that has been referred to a professional council under this section."
The Council says that, notwithstanding the continued involvement of the Health Care Complaints Commission with the complaint as late as 12 October 2010, the joint decision of the Council and the Health Care Complaints Commission made on 3 August 2010 was to refer the matter to the Council under section 25B for consideration.
Though there is no explicit reference to section 25B in the letter of 22 September 2010, I am satisfied that the Commission did refer the matter to the Council for consideration under that section, because it did not investigate or conciliate under section 13, the only other option was a referral under section 25B, and the letter of 22 September 2010 contains uncontradicted evidence that a referral was made to the Council.
On referral for consideration by the Council under section 25B, section 25B(2) required the Health Care Complaints Commission to discontinue dealing with the complaint. To the extent that it purported to continue to deal with the complaint at the meeting of 12 October 2010, it did so in contravention of the section, and beyond power. It may have done so in error, but it is unnecessary to make a finding on that issue for the purposes of determining whether a section 25B was made.
The letter dated 4 October 2010, to which access is sought, was requested by the Council in its letter dated 22 September 2010, well after the matter had been referred to the Council under section 25B. In its letter of 22 September 2010, the Council indicated that the Council had determined to seek a response from the Applicant after the matter had been referred to it by the Health Care Complaints Commission. By the time the Council decided to request the letter, the Health Care Complaints Commission had been obliged by section 25B(2) to discontinue dealing with Sergeant Scott's complaint.
It follows that the letter was obtained by the Council following the Commission's referral of the complaint to it for consideration. In a general sense, the request for the letter resulted from the referral itself. However, the issue is whether the letter of 4 October 2010 constituted "information obtained in exercising a function under this Act" (emphasis added).
It was obtained by the Council, not by the Commission. When the Council requested the applicant's response to the complaint by its letter dated 22 September 2010, it was exercising its power of to make inquiries about the complaint under section 145B(1)(a) of the Health Practitioners Regulation National Law. It was not exercising any function given to it under the Health Care Complaints Act 1993. As the letter of 4 October 2010 was not obtained by the Council in the exercise of any function under the latter Act, it does not attract the overriding secrecy provisions of Schedule 1, subclause 1(1). No conclusive presumption of an overriding public interest against disclosure arises as a result of that subclause.
For the same reasons, section 99A(1) is not attracted.