Administrative Decisions Tribunal
New South Wales

Medium Neutral Citation:

AIL v Department of Premier and Cabinet (GD) [2013] NSWADTAP 26

Hearing dates:

12 April 2013

Decision date:

07 June 2013

Before:

Judge K P O'Connor, President
S Montgomery, Judicial Member
M von Kolpakow, Non-judicial Member

Decision:

1. That the Tribunal's order 'decision under review affirmed' be replaced by the following order 'The Tribunal decides not to take any action on the matter'.

2. Appeal dismissed.

Catchwords:

PRIVACY - Health Information - Whether disclosure by organisation lawful - Response to letter of investigation from Anti-Discrimination Board - Included reference to information regarded by the complainant as outside the scope of the complaint - Whether permitted, necessarily implied or reasonably contemplated under an Act or any other law - Tribunal held reasonably contemplated - Appeal - Appeal dismissed. Health Records and Information Privacy Act 2002, Health Privacy Principle 11(2)(b); 10(2)(a)

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004
Health Records and Information Privacy Act 2002
Human Rights and Equal Opportunity Commission Act 1986
Privacy and Personal Information Protection Act 1998
Workplace Injury Management and Workers Compensation Act 1998

Cases Cited:

AFC v The Sydney Children's Hospital Specialty Network (Randwick and Westmead) [2012] NSWADT 189
AIL v Department of Premier and Cabinet [2012] NSWADT 191
Department of Education and Communities v VK [2011] NSWADTAP 61
Director General, Department of Education and Training v MT [2006] NSWCA 270; (2006) NSWLR 237
Director-General, Department of Education and Training v MT (GD) [2005] NSWADTAP 77
PN v Department of Education and Training [2010] NSWADTAP 59
Woodside & Anor v Director General, Department of Community Services [2000] NSWADTAP 8

Category:

Principal judgment

Parties:

AIL (Appellant)
Department of Premier and Cabinet (Respondent)

Representation:

In person (Appellant)
S Morris, Crown Solicitor's Office (Respondent)

File Number(s):

129034

Decision under appeal

Citation:

AIL v Department of Premier and Cabinet [2012] NSWADT 191

Date of Decision:

2012-09-19 00:00:00

Before:

General Division

File Number(s):

123031

reasons for decision

1This appeal relates to the operation of the Health Records and Information Privacy Act 2002 (HRIPA). HRIPA requires organisations that hold health information about individuals to observe the Health Privacy Principles (HPPs). The respondent Department is an organisation bound by HRIPA.

2The appellant has applied to the Tribunal for review of the conduct of the Department in relation to the contents of its reply to a letter from the President of the Anti-Discrimination Board (the Board) dated 19 August 2011 sent following a complaint by him to the Board under the Anti-Discrimination Act 1977 (ADA). The appellant lodged the complaint with the Board on 25 July 2011. The Department replied by letter dated 15 September 2011. On 14 October 2011 the appellant complained to the Department that it had breached his rights under HRIPA by its 'action of use and disclosure of health information' in the way that it had replied to the President's letter. The Department's internal review report dated 11 January 2012 found no contravention.

3The appellant made his application to the Tribunal on 6 February 2012. The Tribunal found no contravention, and purported to 'affirm the decision under review': AIL v Department of Premier and Cabinet [2012] NSWADT 191 (19 September 2012). (The form of order is misconceived. The Tribunal's jurisdiction in this area is 'to review conduct', and the relevant menu of orders is found at s 55(2) of the Privacy and Personal Information Protection Act 1998 (PPIPA). The order should have been expressed as a decision 'not to take any action on the matter'.)

4The appellant now appeals. A Tribunal decision made under HRIPA may be appealed to the Appeal Panel on a 'question of law', and the appellant may apply for the leave of the Appeal Panel to extend the appeal to the merits: see PPIPA s 56 (applicable by force of HRIPA s 21); Administrative Decisions Tribunal Act 1997 (ADT Act), s 113(2).

5In his notice of appeal and submissions (28 November 2012), the appellant contends that there were seven matters involving questions of law where the Tribunal erred. The Department in its notice of reply and submissions (16 January 2013) does not accept any of the contentions. The hearing of the appeal took place on 12 April 2013.

The Correspondence

6The President's letter attached the Board complaint form completed by the appellant. The form referred to a meeting between him and his manager that occurred between 2.30 pm and 3.00 pm on 11 March 2010. He said the manager closed the door before speaking to him, and he said that the manager then suggested that he had an unduly friendly relationship with another man in the office. The complainant saw the remarks as carrying a sexual innuendo, and as constituting sexual harassment. He noted in his complaint that on 28 March 2010 he had lodged a formal grievance of workplace bullying against the manager, and that the 'above conversation formed part of the allegations, however it seems that the sexual harassment aspect was lost during the course of the investigation'. He referred to interviews later conducted with him by the investigator, Mr Coulthart and a Mr Baldwin (who reviewed the investigation) in which he says that he reiterated that he regarded the manager's comments as of a sexual nature. He now sought a remedy for this aspect of his grievance.

7The President's letter had a number of standard form paragraphs. We extract below the part directly relevant to the complaint:

Complaint under the NSW Anti-Discrimination Act 1977

by [AIL] against the Department of Premier and Cabinet

On 26 July 2011 the Board received a complaint from [AIL] ("the complainant") against the Department of Premier and Cabinet ("the respondent"). [AIL] alleges that in the course of his employment he was sexually harassed. A copy of the complaint is attached.

The NSW Anti-Discrimination Act 1977 states that we must investigate any complaints that

are in writing, and

appear to be covered by this Act.

The complainant's allegations appear to fall within sections 22A, 22B and 53 of the Anti-Discrimination Act 1977 (NSW). A copy of these sections is attached.

8The letter continued by giving standard information under the following headings: 'What is the Board's role', 'What happens if you can't reach a settlement?', 'Will this complaint be kept confidential?', 'How does the Board investigate a complaint', 'What happens next?', 'What will the Board do with your reply?', 'What happens if you do not reply?', 'What if you have any questions or wish to discuss the complaint?'

9Under the heading 'What happens next?' the letter said:

We now need your side of the story. Please provide a written answer to the following questions:

1) Your reply to the complainant's allegations which are set out in the form of a complaint sent to the Board; and

2) Any other information that you think might help us investigate this complaint.

10The Department's reply was as follows (we have anonymised some identifying information):

RE: Complaint under the NSW Anti-Discrimination Act 1977

Reference Number C2011/0682

I refer to your letter dated 19 August 2011 re the complaint lodged by [AIL] with the NSW Anti-Discrimination Board (ADB) alleging sexual harassment by a Department of Premier and Cabinet (DPC) employee.

As you will see from the documentation, the emphasis on [AIL's] claim centres around alleged bullying and harassment.

I am aware that on 28 March 2010, [AIL] lodged a grievance with the Department's Corporate Governance Branch alleging bullying and harassment by his manager [T]. This grievance was handled in accordance with Department policy. The Department engaged an external consultant, Mr Gary Coulthart of MCAA Australia Pty Ltd to investigate this and other bullying and harassment allegations raised by [AIL] concerning relationships between other staff.

The investigation findings found [AIL's] claims to be unsubstantiated. At no stage during the course of the investigation did [AIL] raise an allegation of sexual harassment with either Mr Coulthart or Corporate Governance Branch staff.

At the request of [AIL], the Department engaged a second external investigator to undertake a review of the first investigation. Mr Geoff Baldwin conducted the review and determined that the initial investigation's findings should be upheld.

Mr Baldwin's report (page 13) notes that [AIL] inferred from a comment [T] made that a sexual relationship existed between himself and [A]. However, Mr Baldwin interpreted [T's] comments as feedback on poor managerial behaviour which risked [AIL] being placed in a compromised position when dealing with [A's] poor performance. This is a similar view and interpretation shared by the Department and Mr Coulthart when reviewing [T's] comments and the context in which they were stated.

Contrary to what [AIL] now states in his ADB complaint, it is recorded in Mr Baldwin's review report that [AIL] said he had not raised or discussed his interpretations of [T's] comments with Mr Coulthart. A copy of Mr Baldwin's report and other pertinent documents are attached for your reference.

In addition, in June 2010 [AIL] lodged a workers compensation claim for depression relating to a work related incident that occurred on 28 March 2010. He cites harassment as the cause of the depression. The Department's Insurer, Allianz, investigated this claim and consequently denied liability. Again, the allegation of sexual harassment was not raised by [AIL].

It should be noted that on the numerous occasions [AIL] has either corresponded with or been afforded the opportunity to meet with senior DPC staff regarding his claims and investigations' outcomes he had at no time alleged sexual harassment had occurred.

On review of the reports relating to [AIL's] allegations coupled with the knowledge that the investigations have found the allegations to be unsubstantiated, I am firmly of the belief that [T] did not commit an act of sexual harassment when performance managing [AIL].

If you require any further information regarding this matter please contact Mr Emanuel Sklavounos, Executive Director, Corporate Governance telephone number 9228 3570.

[SGD]

Attachments

1. [AIL's] grievance dated 28 March 2010

2. Mr Coulthart's investigation report

3. Mr Baldwin's review report

4. Correspondence from Mr Raper to [AIL] re no claim of workplace bullying or harassment

5. Correspondence from Allianz.

11The primary rule is that organisations bound by HRIPA may only use or disclose an individual's health information for the primary purpose for which it was collected: HPP 10(1) (use); HPP 11(1) (disclosure):

10 Limits on use of health information

(1) An organisation that holds health information must not use the information for a purpose (a secondary purpose) other than the purpose (the primary purpose) for which it was collected ...

11 Limits on disclosure of health information

(1) An organisation that holds health information must not disclose the information for a purpose (a secondary purpose) other than the purpose (the primary purpose) for which it was collected ...

12There are numerous qualifications to the primary rule starting with consent. Most of them are set out in sub-clause (1). The Department relied on sub-clause (2)(b), which is common to HPP 10 and HPP 11. It provides:

(2) An organisation is not required to comply with a provision of this clause if: ...

(b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998).

13In this case, the key issue is disclosure not the administrative 'use' of the information that took place internally in order to respond to the letter of investigation. If the Department wrongly disclosed the information then it would follow in the present circumstances that it wrongly used the information.

14To understand the place of HPP 11(2)(b), it is helpful to set out the whole of HPP 11(2):

(2) An organisation is not required to comply with a provision of this clause if:

(a) the organisation is lawfully authorised or required not to comply with the provision concerned, or

(b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998), or

(c) the organisation is an investigative agency disclosing information to another investigative agency.

15It can be seen that this provision is seeking to deal with the disclosure of health information in various regulatory settings. The Department could not point to a provision that 'lawfully authorised or required' it to respond in the way that it did (category (a)), and the provision dealing with exchanges between investigative agencies was inapplicable as neither it nor the Board were so defined (category (c)). Category (b) clearly seeks to deal with less exact circumstances than those to which (a) is addressed.

16It emerged at the Tribunal hearing that the appellant's primary grievance was over the disclosure by the Department of the workers compensation documents relating to injury management and return to work, and the release to the Board of sensitive health information about him contained within that material. In his view, his complaint did not traverse this area. His complaint referred specifically to the comment made by the manager, and to the interviews he had with people involved in investigating or reviewing the internal grievance. He did not refer to the workers compensation claim. He submitted that it was unlawful for the Department to refer to information acquired in that context. He criticised especially the disclosure of his 'diagnosis' as set out in the assessment report provided by Ms Lyn Burgess, Centre for Corporate Health Pty Ltd, dated 12 July 2010, included as part of attachment 5.

17The Tribunal accepted the Department's submission that in the circumstances 'non-compliance' on the part of recipients of letters of investigation from the President 'is reasonably [to be] contemplated', having regard to the powers of investigation vested in the President by the ADA.

18As to the President's powers of investigation, the ADA provides relevantly:

89B Acceptance or declining of complaints by the President

(1) The President is to determine whether or not a complaint made to the President is to be accepted or declined, in whole or in part.

90 President to investigate complaints

(1) The President is to investigate each complaint that the President has accepted under section 89B.

90B Supplying information and documents

(1) The President may, by notice in writing, require a complainant or a person against whom a complaint is made to provide:

(a) information (orally or in writing), or

(b) documents,

(such information or documents, or both, being referred to in this section as the relevant material) within 28 days after the date of the notice or such other period as the President determines and specifies when making the requirement.

(2) A person of whom a requirement is made under subsection (1):

(a) must provide to the President any of the relevant material that is in the person's possession, custody or control within the period specified in the notice, unless the person has a reasonable excuse for not doing so, and

(b) must, if the person has a reasonable excuse for not providing the relevant material, or any part of it, give notice to the President of the excuse and of the relevant material to which the excuse relates within the period specified in the notice under subsection (1).

Maximum penalty: 50 penalty units, in the case of a body corporate, or 10 penalty units in any other case.

(3) The President may, by notice in writing, require a person other than a person referred to in subsection (1) to supply the relevant material within 28 days after the date of the notice or such other period as the President determines and specifies in the notice.

(4) A person who receives a notice under subsection (3):

(a) must provide to the President any of the relevant material specified in the notice that is in the person's possession, custody or control within the period specified in the notice, unless the person has a reasonable excuse for not doing so, and

(b) must, if the person has a reasonable excuse for not providing the relevant material, or any part of it, give notice to the President of the excuse and of the relevant material to which the excuse relates within the period specified in the notice under subsection (3).

Maximum penalty: 50 penalty units, in the case of a body corporate, or 10 penalty units in any other case.

(5) If the relevant material is not provided or supplied under subsection (2) or (4), the President may refer the complaint to the Tribunal.

19In its submissions to the Tribunal, the Department also drew attention to the President having the power to seek to resolve a matter by conciliation (s 91A(1)) and having the power to require the parties to appear before him for that purpose (s 91A(2)). The Department noted that the President may refer a complaint to the Tribunal in circumstances additional to where there is a failure to provide or supply material under s 90B (s 95(1)). The Department noted that until 2004 the Board had no coercive power to demand information as now seen in s 90B: see Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004; Attorney General's Second Reading Speech, Hansard, LA, 16 September 2004). Previously the Board had relied entirely on respondent co-operation, with the power in reserve to refer the case to the Tribunal, where powers of a coercive kind did exist.

20The Tribunal had regard to Appeal Panel decisions dealing with the equivalent provision in PPIPA. (PPIPA applies to 'personal information' except where it meets the definition of 'health information' for which HRIPA takes over). Sections 17 and 18 of PPIPA set down the Information Protection Principles (IPPs) governing, respectively, use and disclosure of personal information. Section 25 is in the same terms as the equivalent provisions in HPP 10(2) and 11(2), i.e.

25 Exemptions where non-compliance is lawfully authorised or required

A public sector agency is not required to comply with section ...17, 18 ... if:

(a) the agency is lawfully authorised or required not to comply with the principle concerned, or

(b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998).

21The Tribunal relied in particular on PN v Department of Education and Training [2010] NSWADTAP 59. The Department's appeal submissions support the Tribunal's reliance on PN.

22In PN the review applicant was a school teacher who had been placed on sick leave for a period and then returned to the school on a return to work program settled with the rehabilitation provider. Four of her complaints concerned communications that passed between certain school personnel and the rehabilitation provider relating to her conduct in connection with the return to work program.

23In that case, the Tribunal reviewed the law governing return to work programs found in the Workplace Injury Management and Workers Compensation Act 1998 (WIMWCA), and held that the disclosures were arguably permitted by the relevant provisions. If it was wrong, they were at the least 'reasonably contemplated' by those laws. The Appeal Panel upheld the Tribunal. It rejected submissions by the review applicant that sought to show that the agency had failed to abide by guidelines governing the management of return to work programs going to various matters of process such as who was to liaise with the rehabilitation provider, and therefore the disclosures not only were not permitted by the law but also could not properly be said to be reasonably contemplated by the law in circumstances of breach of the relevant guidelines.

24The Appeal Panel said:

50 In her submissions, PN referred to the specific requirements of the WIMWCA. These include the need for a workplace to have a written document on display in the workplace as to its return to work program. The Act stipulates what matters are to be addressed by the document. The relevant guidelines are found in a document issued by WorkCover. It includes a guideline that there be a trained return to work co-ordinator. One of the subsidiary complaints in this case is that Ms T was not a trained co-ordinator.

51 The submissions go on to focus on the duties of a return to work co-ordinator as set out in this document. The submissions object to the Tribunal's conclusion at para [210] that it was 'reasonably contemplated that [Ms T] would communicate her concerns to the rehabilitation provider', because it is said, it is 'directly contrary' to the guidelines, which contain statements as to with whom the co-ordinator is to make contact.

52 ...

53 In our view, the guidelines to which PN refers are no more than that. They do not lay down strict rules in relation to permissible disclosure in the way suggested in the submissions.

54 Further, we do not think that the task required of the Tribunal in deciding whether or not s 25 is applicable requires it to go so far as to make a microscopic comparison of an alternative law to which an agency refers in justification. Section 25 is expressed in broad language. It is enough that 'non-compliance is reasonably contemplated' by the other law.

55 The Tribunal is called upon, as we see it, to consider the subject matter of the alternative law and ask itself, first, is this the kind of subject matter with which a relevant IPP is concerned in the circumstances of the case before it.

56 Necessarily, the workers compensation regime involves the management of personal information. Moreover, the workers compensation regime has detailed provisions allowing movements of information between a number of parties who have a business role in the management of workers' injuries and the determination of claims.

57 In our view, it is enough for s 25(b) to apply that the transactions in issue (here, one instance of indirect collection and otherwise disclosures) are of a type that is contemplated by the regime; and that they are genuinely undertaken for the purpose of the scheme. Whether something is 'reasonably contemplated' is a factual determination for the trial tribunal to make, only vulnerable to appeal as an error of law on narrow grounds, such as no evidentiary basis for the finding or because the finding is one no rational tribunal could make. This is clearly not a case of that kind.

58 If the Department has breached the guidelines or the statutory provisions in the way it carried out its obligations under the workers compensation regime, as PN's submissions suggest, those are matters to be dealt with through the complaints mechanisms that the workers compensation regime has. The breaches are not open to be litigated within the framework of the privacy legislation.

59 The Tribunal's task is simply to make a broad judgement as to whether s 25 applies. The protection given to an agency by s 25 is not lost simply because the agency has failed to comply, in some aspect of the detail, with a requirement of the other law.

60 If the strict view pressed by PN were to be adopted, privacy cases raising s 25 would give rise to a detailed collateral inquiry into whether the agency had strictly complied with the alternative regime. We do not think that the words of s 25 support such a conclusion, and engagement by the Tribunal in a collateral inquiry would defeat the evident purpose of s 25.

25The Tribunal, and the Department's submissions, also referred to the Appeal Panel's observations in Department of Education and Communities v VK [2011] NSWADTAP 61. In that case, the Appeal Panel, upholding the agency's objection, rejected a Tribunal ruling that whether a disclosure is 'genuinely undertaken' for the purpose of the scheme (see PN, above [57]) depends on whether the disclosure was 'relevant' to the scheme. The Panel concluded at [14]-[16]:

14 The Department's submission is that in deciding what is 'reasonably contemplated' by a law one looks to the overall circumstances of the communication but does not drill down to the specific elements of the communication and appraise them by reference to a standard of relevance.

15 The limitation expressed by the Appeal Panel in its reasons in PN was directed, in the Department's submission correctly, to the situation of a malicious or bad faith communication (viz. the reference to whether a communication was 'genuinely undertaken for the purpose of the scheme'). It is enough in the Department's submission that the principal (in this instance) dealt in good faith with a type of communication that is usual in the workplace assessment process.

16 We agree with the Department's submission. The approach commended in PN involves a broad inquiry. By introducing the 'relevance' qualification the Tribunal below added a factor which we think is not embraced by the words 'reasonably contemplated'.

Grounds of Appeal

26We referred earlier to the various categories listed in HPP 11(2). What is 'lawfully authorised' or 'required' ((a)) and what is 'permitted' or is 'necessarily to be implied' (first two items in (b)) are all matters that require the agency or the Tribunal on review to engage in a process of statutory construction. Questions of law arise. The Department did present a case at first instance which relied on each of the alternatives listed in HPP 11(2)(b). We will deal with the dispute, as the Tribunal did, simply on the third basis, whether the disclosure could be said to be of a kind that is 'reasonably contemplated' by the law relied upon, the ADA.

27What may be 'reasonably contemplated' under an Act or any other law does not, in our opinion, raise a question of law. There may be an anterior question that is one of law - the proper understanding of the law which provides the basis for the decision as to what that law 'reasonably contemplates'. But having done that, what is left is a question of fact: could the discloser have 'reasonably contemplated' that the relevant legislation (here the ADA) required of it a disclosure of the kind in issue. The Tribunal expressed itself satisfied.

28Disturbing a finding of fact on appeal is difficult. See generally, Woodside & Anor v Director General, Department of Community Services [2000] NSWADTAP 8 esp at [42].

29The appellant's first point is that the Tribunal, and the Appeal Panel in PN, failed to have regard to a contrary precedent, Director-General, Department of Education and Training v MT (GD) [2005] NSWADTAP 77 at [86] ff (set aside on other grounds, Director General, Department of Education and Training v MT [2006] NSWCA 270; (2006) NSWLR 237). The Department noted that the decision pre-dates PN and that there was no need for the Tribunal to refer to it. The Department's submissions dealt in some detail with differences between the circumstances in relation to the aspect of MT relevant to this case.

30MT dealt with the very important question of the extent to which an agency is responsible for misconduct by a staff member who accesses an agency database for non-agency purposes. The case involved a school teacher who accessed school records about a student's disability and drew the information to the attention of the local soccer team. As a result, team management decided to drop the student from the final for duty of care reasons and to avoid the possibility of being exposed to litigation if she was injured and sued.

31The agency ran its defence in the alternative - first, the privacy laws did not apply as it had not engaged in the conduct, the staff member had acted independently; two, if it was wrong in that regard, and its staff member's conduct were to be regarded as conduct of the agency, it relied on various exceptions to the principle limiting disclosure. The Tribunal and the Appeal Panel rejected the primary contention, and examined the case by reference to the second argument and found the agency liable in some respects. The Court of Appeal overruled the Appeal Panel and held in favour of the agency on the primary basis.

32The applicant also put in issue the disclosure by the agency of information about her disability to the federal human rights body to which she had made a complaint of breach of federal law by the soccer club. The agency was not a party to the complaint. However it was contacted as a person with relevant information. The applicant challenged the disclosures it made as unlawful, and the agency relied on s 25(a) or (b). The circumstances are clearly similar to the present case.

33The Appeal Panel said:

86 Disclosure to Human Rights and Equal Opportunity Commission: The Department's next submission under this heading referred to the Human Rights and Equal Opportunity Commission Act 1986, s 46PI and s 48(3) which provide:

'President's power to obtain information

Section 46 PI

(1) This section applies if the President has reason to believe that a person is capable of providing information (relevant information) or producing documents (relevant documents) relevant to an inquiry under this Division.

(2) The President may serve a written notice on the person, requiring the person to do either or both of the following within a reasonable period specified in the notice, or on a reasonable date and at a reasonable time specified in the notice:

(a) give the President a signed document containing relevant information required by the notice;

(b) produce to the President such relevant documents as are specified in the notice.

(3) If the notice is served on a body corporate, the document referred to in paragraph (2)(a) must be signed by an officer of the body corporate.

(4) If a document is produced to the President in accordance with a requirement under this section, the President:

(a) may take possession of the document; and

(b) may make copies of the document or take extracts from the document; and

(c) may retain possession of the document for as long as is necessary for the purposes of the inquiry to which the document relates.

(5) While the President retains any document under this section, the President must allow the document to be inspected, at all reasonable times, by any person who would be entitled to inspect the document if it were not in the possession of the President.

Protection from civil actions

Section 48

(3) Where:

(a) a complaint has been made to the Commission; or

(b) a submission has been made, a document or information has been furnished, or evidence has been given, to the Commission or to a person acting on behalf of the Commission;

a person is not liable to an action, suit or proceeding in respect of loss, damage or injury of any kind suffered by another person by reason only that the complaint or submission was made, the document or information was furnished or the evidence was given.'

87 The correspondence with HREOC is set out at para [7] (letter from HREOC) and para [8] of the Second Internal Review Report at para [8]. The Tribunal held:

'201 I do not accept the Agency's assertion that non-compliance with sections 18 was "lawfully authorised or required", "otherwise permitted" or "necessarily implied" under the HREOC Act. It is my view that for such a result to follow there would need to have been a direction from HREOC to the Agency. Here there was merely a request from the HREOC President and the request is not directed to the Agency or even the Teacher. The HREOC Matter concerned MT and the Soccer Club. Neither the School nor the Agency were parties or named in the complaint. It cannot be the case that the Agency was compelled to comply with a request by HREOC addressed to the Soccer Club. If the HREOC President, using her powers under section 46PI of the HREOC Act, had sought access to MT's personal information from the Agency, it might be arguable that the Agency must comply with that request under section 25(b) of the Privacy Act. However, in such circumstances there may have been an opportunity for the Agency to dispute the need to supply the information. In these circumstances that was not the case. In my view the nexus is insufficient to give rise to the exemption asserted.

202 I also agree with Mr MacDiarmid's submission that section 48(3) of the HREOC Act exists to protect witnesses and others who are appropriately involved in HREOC proceedings. In my view, no protection applies in relation to these proceedings as a result of that provision as HREOC simply did not request any information from the Agency.'

88 We are comfortable with the Tribunal's conclusion that s 46PI is not applicable. For s 46PI to be triggered, we think there would have to be evidence of service by the President of a 'written notice ... requiring the person' to take the steps set out in s 46(4). That point, in our view, had not been reached in this case. The President did write a formal opening letter the inquiry. In the letter the President said: 'At this stage, I am seeking a response as part of my inquiry into this complaint. I therefore request your comments on allegations and would appreciate your advice on the following matters'. As most responsible recipients of such a letter would do, the soccer club president responded by way of the letter from X set out in para [8] of the Second Internal Review Report.

89 We do not agree with the Tribunal's interpretation of s 48(3). In this instance 'information has been furnished ... to a person acting on behalf of the Commission'. That was done as part of the official processes of the Commission, though, in our view, the letter was a letter of request and not a demand of the kind to which s 46PI is applicable.

90 We can not see how the provision can be read down only to apply to formal proceedings before the Commission. The Commission, when dealing with complaints, does not conduct proceedings of the kind to which witnesses are called. It is a conciliation body. The adjudicative function in respect of federal discrimination complaints is vested in the federal courts. In our view the provision confers an immunity on those that supply personal information to the Commission. The Commission may be vulnerable if it then fails to protect the supplied information.

91 Accordingly, in our view the contents of the letter to HREOC are protected from any suit or proceeding including action taken before this Tribunal under the Privacy Act.

92 This aspect of the Department's appeal is allowed.

34In our view, the Appeal Panel at [88] of the passage concerned did not turn its mind to the second issue of whether the agency's conduct fell within s 25(b), and this passage can not, we consider, be regarded as a conflicting authority. We agree in this regard with the Department's submissions that the words used in the HREOC letter - 'we would appreciate your advice' - point to a less formal opening communication than the one under notice in this case. In any event, if MT is inconsistent, we accept PN and VK as the prevailing authority today, both cases in which the issue of the interaction between s 25(b) and regulatory correspondence was considered in much greater detail. MT at appeal did not require close attention to this point because the agency's conduct was found lawful by reference to s 48 of the Human Rights and Equal Opportunity Commission Act 1986.

35There was no error of law in the Tribunal failing to refer to MT.

36The appellant's second point is that the Tribunal misunderstood the circumstances now before it as ones arising within the workers compensation regime. The relevant discussion appears at [46] ff of its reasons. The Tribunal did not misunderstand the situation. It was clearly applying PN by analogy. The analogy is that the present case involves a department responding to an official enquiry from an investigating body. The investigating body is operating within a statutory framework.

37We note that the Tribunal's reasons at the relevant point, [46] ff, have a formatting error. The Tribunal set out to quote at para [46] verbatim the text of PN at [54]-[60]. Indented within para [46] is the text of [54]-[57] of PN. What then occurs is that paras [58]-[60] of PN appear unindented as paras [47]-[49] of the continuing text of the Tribunal's reasons, suggesting perhaps that the Tribunal is now construing the case before it as one about statutory obligations in the workers compensation area. The paragraphs were a continuation of an intended block quote from PN.

38The third point is that the disclosure of the Burgess assessment went beyond any reasonable view of what was relevant to disclose to the President in response to the matter raised by the complaint. The appellant puts it this way in his appeal submissions at [25]: '...the Respondent was requested to respond to a complaint of sexual harassment and provide any other information. The Respondent architected [sic] a theory that the applicant had not previously raised this as an issue ... and so endeavoured to provide evidence to support this theory.' He continues at [27]: 'The applicant's complaint to the ADB made no reference to the workers compensation, this having direct links only to the workplace injury which related to workplace bullying. The applicant was (and still is) of the view that the workers compensation material had no nexus to the complaint of sexual harassment. It has been an irrelevant distraction to this matter. The applicant does not agree that the release of his health information was otherwise permitted (reasonably contemplated or necessarily implied) as he clearly sees the difference between the sexual harassment complaint and his workers compensation file for an unrelated workplace injury.'

39We have noted that the appellant confined the contextual information he gave in the written complaint to that of the internal grievance process. However, that can not dictate the scope of the respondent's reply. The issue remains whether what is in fact supplied can be said to be information of a kind that is permitted, necessarily implied or reasonably contemplated by the relevant legal regime. Here there had been another stream of investigation that overlapped in time with the internal grievance investigation that involved consideration of the conduct of which the appellant complained. The Tribunal was at liberty to find as a matter of fact that disclosure of the details of the second stream of investigation including the assessment report was reasonably contemplated by the ADA.

40The fourth point criticises the Tribunal for rejecting the appellant's contention that the Burgess report was provided maliciously. He submits that he was denied an opportunity to present a case on this point. The point draws on what was said in PN at [57] and added to by VK at [15].

41The reference in PN and VK to the issue of genuineness needs to be read cautiously. It should be seen simply as a factor that might bear on a conclusion as to whether the legal regime on which the discloser relies could be said to 'reasonably contemplate' the communication(s) in issue. It is not intended to create an easy platform for a collateral inquiry into officer motivations.

42In our view there is nothing about this case, based on the material both parties placed before the Tribunal, that might reasonably suggest that the Department was engaged in anything more than a usual act of administration. It replied in what, on its face, was a comprehensive way to a letter of investigation from an investigative agency that, at least arguably, was in formal exercise of statutory powers though not expressly stated (for a case where the conclusion was reached that a letter silent in this respect involved the formal exercise of these powers, see AFC v The Sydney Children's Hospital Specialty Network (Randwick and Westmead) [2012] NSWADT 189 at [29]).

43The appellant's appeal submissions from [42] to [73] seek to have considered a large body of evidence going to this point, accompanied by sixteen annexed documents. This is done within the framework of an error of law submission. There is no error of law. The issue of 'genuineness' is no more than a consideration that might be considered relevant. In this case there was, as we see it, no tenable basis for regarding it as possibly relevant on the material supplied. If the appeal submissions from [42] and [73] are treated as being more in the nature of an attempt to have the appeal extended to the merits on this point, we would decline leave. We agree with the Department's submissions that almost all of the annexed documents are irrelevant to the case as it was conducted before the Tribunal. They deal with such matters as the reasons for the manager's transfer from a previous position to the position he held when supervising the appellant, documents relating to complaints made by the appellant about the Department's record keeping practices and other documents that post-date the exchange of correspondence that lies at the heart of this case.

44At [35]-[37] of its reasons the Tribunal briefly refers to what occurred after the internal investigation report (Coulthart) was completed, and refers to the contents of the Baldwin report as they relate to the question of when the sexual innuendo allegation was first raised.

45In his fifth point the appellant is critical of a statement by the Tribunal, which first refers to a letter he tendered at the hearing, and states that it 'appears that this letter gave rise to Mr Baldwin's review'. He says this is wrong, but does not pursue the point in his appeal submissions, as best we can discern. In our view, this is an instance of an argument over a minor aspect of a précis account of the material before the Tribunal. If there is any error, it is of minor degree, is one of fact, and does not amount to a factual finding so critical or so perverse as to raise the need to consider whether it amounts to an error of law. The sixth point refers to the Tribunal's adoption at [37] of the account given in the Baldwin report as to whether or not the applicant had previously suggested that the comments of the manager constituted sexual harassment, not merely bullying. The appellant wishes to have an opportunity to be heard on Mr Baldwin's statements. This is an invitation to a collateral inquiry, that, for the reasons the Appeal Panel has given in the cases already cited, must be approached with great caution.

46In our view, it was not required that the Tribunal embark on any close exploration of the dispute as to when the appellant's complaint over the manager's comment was first cast as having a sexual connotation. In line with what was said in PN, a broad review of the administrative circumstances will ordinarily be sufficient to enable a conclusion to be reached on the question in issue in this case, whether apparent non-compliance with HPP 11 (and by extension HPP 10) was protected by sub-clause (2)(b). It will be sufficient, normally, simply to make the assessment by reviewing the primary documents.

47The remaining point, the seventh point, focuses on para [63] of the reasons, and is along similar lines. At [63] the Tribunal correctly noted that the Department was wrong in part of its reply to the Board in saying that the comment had not previously been characterised as one involving sexual harassment as distinct from workplace bullying. The Tribunal then went on to make some assertions of fact that the appellant seeks to contest. The Tribunal said that the Department was correct in saying that it had not been raised at two specific points, the Baldwin inquiry and the Allianz workers compensation inquiry. The appellant seeks an opportunity to be heard in reply to the Tribunal's finding at [63] that he did not raise the sexual harassment allegation during the Baldwin inquiry.

48In our view, this is also an incidental factual finding of minor significance to the ultimate question in the case. We are inclined to agree with the appellant's further comment in the notice of appeal that the issue became an 'irrelevant distraction'. There is no error of law.

49The appeal is dismissed.

Form of Order

50Further to the point made at para [3] above, we will substitute for the Tribunal's order ('decision under review affirmed') a decision 'not to take any action on the matter'.

51We will ask the Registrar to arrange for a re-issue of the primary decision to correct the formatting error, and to include the substitute order.

Order