Civil and Administrative Tribunal New South Wales

• Medium Neutral Citation: AQO v Gregory Pearce MLC [2014] NSWCATAD 210
• Hearing dates: On the papers
• Decision date: 03 December 2014
• Jurisdiction: Administrative and Equal Opportunity Division
• Before: S Montgomery, Senior Member

Decision

1. The Tribunal therefore has jurisdiction to hear and determine this matter.

2. The matter is remitted for determination by the Respondent.

3. The determination is to be completed within 28 days of the date of this decision.

4. The matter is listed for a further planning meeting on 13 January 2015 at 2 pm.

• Catchwords: Health Records and Information Privacy - jurisdiction - whether the Minister is a public sector agency
• Legislation Cited: Administrative Decisions Review Act 1997; Civil and Administrative Tribunal Act 2013; Privacy and Personal Information Protection Act 1998; Health Records and Information Privacy Act 2002
• Cases Cited: Arogen v Leighton [2013] NSWSC 1099; Fountain v Alexander (1982) 150 CLR 615 at 629; 40 ALR 441; GA & Ors v Department of Education & Training and NSW Police [2004] (GD) NSWADTAP 18; JD v Medical Board (NSW) [2008] NSWADT 67; MG v Department of Education and Training [2004] NSWADT 137; Pape v Federal Commissioner of Taxation (2009) 238 CLR 1; Travelex Ltd v Commissioner of Taxation (2010) 241 CLR 510; Williams v Commonwealth (2012) HCA 23
• Category: Principal judgment
• Parties: AQO (Applicant); Gregory Pearce MLC (Respondent)
• Representation: J Rogers Harris & Harris Solicitors (Applicant); Crown Solicitors Office (Respondent)
• File Number(s): 133148, 133147

reasons for decision

1 This matter was commenced in the General Division of the Administrative Decisions Tribunal ("the ADT") pursuant to the Administrative Decision Tribunal Act 1997 ("the ADT Act"). On 1 January 2014, the ADT was abolished and its functions were taken over by the Civil and Administrative Tribunal of New South Wales ('NCAT'). The present decision is therefore a decision of NCAT. However, because the proceedings to which it relates are 'part heard proceedings' as defined in clause 6(1) of Schedule 1 of the Civil and Administrative Tribunal Act 2013, they are to be determined as if that Act had not been enacted (see clause 7(3)(b) of this Schedule).

2 The application was initially listed before Senior Member Molony, who conducted planning meetings and listed the matter for determination. However after the matter was reserved for determination, Senior Member Molony became unavailable. The President of NCAT determined to substitute the Senior Member for myself as permitted under section 52 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) and sought the parties' views in accordance with the provisions of section 52.

3 The Registrar of the Tribunal wrote to the parties in respect of the proposed substitution. Neither party objected to me determining the matter. In the absence of any submission to the contrary, the Tribunal was reconstituted in accordance with section 52 (3) of the NCAT Act.

4 Each of the parties has filed material in response to directions made by Senior Member Molony. I have considered the material provided by both parties. I have taken that into account even though I may not specifically refer to all of the material in these reasons.

5 In these reasons the name of the Applicant has been anonymised so as to preserve the privacy of his personal affairs. The Applicant is referred to as AQO. I have also limited my discussion of the evidence in order to avoid the possibility that the Applicant's identity might be revealed.

6 AQO is seeking review by the Tribunal under the provisions of the Privacy and Personal Information Protection Act 1998 ("the PPIP Act") in relation to alleged conduct by the Respondent ("the Minister") and the Health Records and Information Privacy Act 2002 ("the HRIP Act").

7 AQO applied for internal review of the conduct of the Minister in using and disclosing his personal and/or health information, and failing to check its accuracy. The specific conduct was described as follows:

"Mr. Pearce produced, distributed and published a media release dated 23 April 2012 ... In that media release he provided a case study (Case Study One). The case study contains the unique details of my Workers Compensation claim. Those details are so specific that they have not been revealed to Mr. Pearce or the world at large and are not on the public record.

It is alleged that Mr. Pearce has breached my privacy by:

1.Obtaining access to another entity (either WorkCover or CGU); and

2.Obtained access to private medical and dispute information relating to my claim; or

3.Used some other means to access information not freely available

He has then used the information in a way that it was not intended to be used. In doing so he has breached my privacy."

8 The Minister's Office declined to conduct an internal review on the grounds that the Minister was not a public sector agency.

9 On 9 July 2013, the Tribunal made directions for the preliminary determination of the Tribunal's jurisdiction to hear and determine this matter where the Respondent is a Minister of the Crown.

10 AQO submits that the Minister is a "public sector agency" within section 3(1) of the PPIP Act and section 4 of the HRIP Act because, at the relevant time, the Minister was "a person or body in relation to whom, or to whose functions, an account is kept of administration or working expenses."

11 AQO submits that it is primarily, if not entirely, his health information that was used and disclosed by the Minister, so that it is the HRIP Act which applies. In JD v Medical Board (NSW) [2008] NSWADT 67 Higgins JM noted at paragraph [24]:

In my opinion Parliament did not intent that an overly technical approach be taken when considering whether particular information was or was not "personal information" or "health information". The information should be viewed in its proper context and not necessarily dissected into parts or analysed in detail word for word.

12 I agree with that view.

13 At the time of AQO's application for internal review section 4(1) of the HRIP Act provided:

"public sector agency means any of the following:

(a) a government department or the Teaching Service,

(b) a statutory body representing the Crown,

(c) a declared authority under the Public Sector Management Act 1988,

(d) a person or body in relation to whom, or to whose functions, an account is kept of administration or working expenses, if the account:

(i) is part of the accounts prepared under the Public Finance and Audit Act 1983, or

(ii) is required by or under any Act to be audited by the Auditor-General, or

(iii) is an account with respect to which the Auditor-General has powers under any law, or

(iv) is an account 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,

(e) the NSW Police Force,

(f) a local government authority,

(g) a person or body that:

(i) provides data services (being services relating to the collection, processing, disclosure or use of personal information or that provide for access to such information) for or on behalf of a body referred to in paragraphs (a)-(f), or that receives funding from any such body in connection with providing data services, and

(ii) is prescribed by the regulations for the purposes of this definition,

but does not include a State owned corporation."

"public sector official means any of the following:

(a) a person appointed by the Governor, or a Minister, to a statutory office ..."

14 At that time section 3(1) of the PPIP Act provided:

"public sector agency means any of the following:

(a) a government department or the Teaching Service,

(b) a statutory body representing the Crown,

(c) (Repealed)

(d) a person or body in relation to whom, or to whose functions, an account is kept of administration or working expenses, if the account:

(i) is part of the accounts prepared under the Public Finance and Audit Act 1983, or

(ii) is required by or under any Act to be audited by the Auditor-General, or

(iii) is an account with respect to which the Auditor-General has powers under any law, or

(iv) is an account 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,

(e) the NSW Police Force,

(e1) Service NSW Division of the Government Service,

(f) a local government authority,

(g) a person or body that:

(i) provides data services (being services relating to the collection, processing, disclosure or use of personal information or that provide for access to such information) for or on behalf of a body referred to in paragraph (a)-(f) of this definition, or that receives funding from any such body in connection with providing data services, and

(ii) is prescribed by the regulations for the purposes of this definition,

but does not include a State owned corporation.

15 Section 3(1) of the PPIP Act has subsequently been amended to include the following provision:

"public sector agency" means any of the following:

...

(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 that Act,

...

16 Alternatively, AQO submits that his internal review application should be construed so as to extend to conduct of staff of the Minister's Office, and that those staff members form part of a public sector agency, being a government department (within paragraph (a) of the definition of "public sector agency") or a body in relation to whom, or whose functions, an account is kept of administration or working expenses in accordance (within paragraph (d) of the definition).

17 Mr McDonnell, on behalf of the Minister, contends that the task of statutory interpretation of the Act is to ascertain the ordinary and grammatical meaning of the words having regard to their context and purpose. He submits that the legislation is concerned with the conduct of public servants. A Minister is not expressly included in the definition of public sector agency and Mr McDonnell contends that had the Legislature intended to include the Minister it would have been easy for it to have done so.

18 The question of whether the legislation applies to the Minister is one of statutory interpretation and the intention is to be gleaned from the object of the Act and statutory circumstances.

AQO's case

19 AQO submits that the Minister is a "public sector agency" within the HRIP Act because the accounts of the Minister's Office relate to him or his functions; the Auditor-General may audit those accounts under the Public Finance and Audit Act 1983; and/or the Minister had power under that Act to request the Auditor- General to do so.

20 Ms Lucy, counsel for AQO, provided written submissions and further submissions in reply to those provided on behalf of the Minister. She points to material filed by the Minister which indicates that there is no separate account for the Minister but an account is held in the Department of Premier and Cabinet in respect of the expenses of the Office of the Minister. Ms Lucy also points to a filed copy of the Minister's Office Administration Handbook ("the Handbook") which was dated February 2012 and current as at 23 April 2012.

21 As noted above, the definition of "public sector agency" includes

(d) a person or body in relation to whom, or to whose functions, an account is kept of administration or working expenses, if the account:

(i) is part of the accounts prepared under the Public Finance and Audit Act 1983, or

(ii) is required by or under any Act to be audited by the Auditor-General, or

(iii) is an account with respect to which the Auditor-General has powers under any law, or

(iv) is an account 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,

22 In relation to that provision, Ms Lucy submitted:

A person in relation to whose functions an account is kept

The definition of "public sector agency" in the HRIP Act means a "person ... in relation to whom, or to whose functions, an account is kept of administration or working expenses" if the account satisfies certain criteria (HRIP Act, s 4). An account of expenses of the Minister's Office (that is, the account held in the Department of Premier and Cabinet in respect of the expenses of the Office of Minister Pearce) is an account in relation to the Minister or the Minister's functions.

The respondent submits that "there is a fundamental difference at law between the Minister and the Minister's Office and the expenses of each and that there is no basis for inferring that the functions or expenses of one relate to the expenses or functions of the other" ... However, the legal difference between the two does not bear upon the question of whether the Minister is a person "in relation to whom, or to whose functions" an account of expenses of the Minister's Office is kept. The evidence indicates that the Minister is such a person.

Mason J has noted that expression "in relation to" is "of wide and general import" and "should not be read down in the absence of some compelling reason for so doing": Fountain v Alexander (1982) 150 CLR 615 at 629; 40 ALR 441 at 450. The degree of connection that must be shown between the two subject matters joined by the expression may differ according to the context. Travelex Ltd v Commissioner of Taxation (2010) 241 CLR 510 at [25], French CJ and Hayne J. In Arogen v Leighton [2013] NSWSC 1099 at [30], in the statutory context in question, McDougall J held that the words "in relation to" may be satisfied by a "real even though indirect link between the subject matters which those words connect"

Here, the beneficial purpose of the HRIP Act indicates that the expression "in relation to" in the definition of "public sector agency" is also satisfied by an indirect link between the person or the person's functions, on the one hand, and the account which is kept, on the other. Ascribing a broad meaning to "in relation to" has the effect that more persons or bodies are subject to the HRIP Act. This advances the Act's purpose of "promot[ing] fair and responsible handling of health information" in various ways including by "protecting the privacy of an individual's health information that is held in the public and private sectors" (HRIP Act, s 3(a)). An interpretation promoting the Act's purpose should be preferred (Interpretation Act 1987, s 33).

The connection between the Minister and the accounts kept of the expenses of the Minister's Office is not, in any event, indirect. Nor is the alternative connection required for the definition indirect; that is, the connection between the Minister's functions and the accounts kept of the expenses of his Office.

The Handbook provides that the budget allocated to each Minister's Office "makes provision for staff salaries, rent and other operating costs". It also provides (on p 15) that.

Ministers' office staff are provided to assist Ministers in performing their official duties in their capacity as Ministers of the Crown. Costs are met from Ministers' office budgets, which are part of the financial allocation to Department of Premier and Cabinet

That is, staff member assist with the Minister's functions and the accounts of the expenses of the office relate to the salaries of staff members, the rent of the premises in which they are accommodated and related operating costs

The description of the duties of staff members in a Minister's Office, at p 19 of the Handbook, makes it clear that the staff duties relate to the Minister's functions. For example, the Chief of Staff manages the Minister's office, including supervision of staff and control of the Minister's Office budget, co-ordinates and organises the Minister's parliamentary program, arranges briefings for the Minister and oversees events in the portfolio to enable the Minister to be kept up to date in these areas. The policy advisor examines, analyses and advises the Minister on agency proposals and recommendations. Other staff members' functions also relate, unsurprisingly, to the Minister's functions. The payment of staff salaries, rent and operating costs from the Minister's Office account allows staff members to assist the Minister with the performance of his functions. It follows that the account of the administrative or working expenses of the Minister's Office relate to the Minister and/or the Minister's functions.

The roles of Ministerial staff members are also tailored to the particular requirements of the Minister in question. The Handbook provides that "[t]he specific allocation of roles and responsibilities depends on considerations such as the Minister's portfolio and other responsibilities, the number of staff in the Minister's office and the skills and experience of the current mix of staff (Handbook, p 19). Further, "[t]he classifications, grades and salary rates for Ministers' staff are intended to support a high level of flexibility in working arrangements that may be designed to suit the needs of individual Ministers" (Handbook, p 19). There is thus a direct link between the expenses incurred in relation to Ministerial Office staff members and the particular Minister and functions of that Minister.

It may be inferred, from the letter filed on the respondent's behalf stating that an account was kept in respect of the expenses of the Office of Minister Pearce, that an account was kept of that Office's administration or working expenses. The Handbook also provides evidence that an account is kept of the administration or working expenses of a Minister's Office. The Chief of Staff has to control the Minister's office budget (Handbook, p 19). The Administrative Assistant is required to prepare accounts and claims (Handbook, p 20). There must be "adequate systems of internal control operating in Ministers' offices" and the Auditor-General has authority to review the expenditure and systems of Ministers' offices" (Handbook, p 33). Department of Premier and Cabinet arranges regular budget reports for Ministers' offices, showing budget allocations, year to date actual expenditure and current month's actual expenditure for line items (Handbook, p 35). Expenditure reports are provided for Ministers' offices by ServiceFirst and expenditure records are maintained by ServiceFirst (Handbook, p 36) The extent of ServiceFirst's verification of expenses attributed to Minister's offices "should be sufficient to satisfy the Chief of Staff that expenditure reports provide a reasonable basis for budget management" (p 36). An expenditure report is an account of administration or working expenses.

The Minister is therefore a person in relation to whom, or to whose functions, an account is kept of administration or working expenses.

The Minister will thus be a public sector agency if the account is of a type listed in paragraph (d) of the definition of "public sector agency"; that is, an account of administration or working expenses which:

(i) is part of the accounts prepared under the Public Finance and Audit Act 1983, or

(ii) is required by or under any Act to be audited by the Auditor-General, or

(iii) is an account with respect to which the Auditor-General has powers under any law, or

(iv) is an account 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.

The Applicant ... submits that the account of the administration or working expenses which is kept for the Minister's Office is:

a. an account with respect to which the Auditor-General has powers under any law (see para (d)(iii) of definition) because

i. the Auditor-General may audit the books and records of the Minister's Chief of Staff (as an accounting officer) under s 35(2) of the Public Finance and Audit Act 1983 ...; and/or

ii. the Auditor-General had power to audit the accounts of the Ministers' office under s 45F of the Public Finance and Audit Act 1983, as those accounts formed part of the accounts of the Department of Premier and Cabinet ...; and

b. an account which the Minister could request the Auditor-General to audit under s27B(3)(c) of the Public Finance and Audit Act 1983 (see para (d)(iv) of definition ...).

The respondent has disputed these claims on the basis that accounts of the Minister's Office do not relate to the Minister or his functions ... The respondent does not provide any reasons why those conclusions would not follow if the Tribunal finds that the account of the administration or working expenses of the Minister's Office relates to the Minister or to the Minister's functions.

Auditor-General may audit Chief of Staff's books and records

[T]he Chief of Staff is an "accounting officer" within the Public Finance and Audit Act 1983, authorised to collect, commit or incur the expenditure of public money. ... [T]he Handbook also provides that the Chief of Staff has control of the Minister's budget (p 19). The Chief of Staff has a financial delegation of $5,000 in relation to Minister's office activities (p 34). Further, the Handbook states that the Auditor-General has authority to review the expenditure and systems of Ministers' offices (p 33).

The Auditor-General therefore had power to audit the books and records of the Chief of Staff concerning the Minister's Office under s 35(2) of the Public Finance and Audit Act 1983 and this was an account with respect to which the Auditor-General has powers under any law within paragraph (d)(iii) of the definition of "public sector agency" in the HRIP Act.

Auditor-General had power to audit Ministers' office accounts

[T]he Minister's Office account is held in the Department of Premier and Cabinet. The Auditor-General's power to audit that Department's financial report under s 45F of the Public Finance and Audit Act 1983 would extend to that part of the report relating to the Minister's Office.

23 Ms Lucy also submitted:

The Auditor General's functions include "to provide any particular audit or audit-related service to the Treasurer at the request of the Treasurer or to any other Minister at the request of that other Minister" (Public Finance and Audit Act 1983, s 27B(3)(c)). It is clear that either the Treasurer or the Minister could request the Auditor-General to audit the accounts of the Minister's office and (if there is a separate Ministerial account), that account. Accordingly, such accounts are accounts "with respect to which the Auditor-General may exercise powers under a law relating to the audit of accounts [that is, the Public Finance and Audit Act 1983] if requested to do so by a Minister of the Crown" within subparagraph (iv) of paragraph (d) of the definition of "public sector agency" in the PPIP Act and HRIP Act.

The Respondent's case

24 Mr McDonnell filed written submissions and submissions in reply to those provided by Ms Lucy.

25 The Respondent submits that the Tribunal has no jurisdiction to review any of the conduct alleged. The Respondent further submits that the applicant has the onus of proving that the Tribunal has jurisdiction and that he has not done so.

26 In essence Mr McDonnell contends that the legislation is concerned with the conduct of public servants. A Minister is not expressly included in the definition of "public sector agency" and had the Legislature intended to include the Minister it would have been easy for it to have done so. He offered as a comparison the definition of "agency" in section 4(1)(b) of the Government Information (Public Access) Act 2009 which provides;

4 Interpretation

(1) Key definitions in this Act:

...

"agency" means any of the following:

(a) ...

(b) a Minister (including a person employed by a Minister under Part 2 of the Members of Parliament Staff Act 2013 )

...

27 Mr McDonnell submitted that the statutory context makes plain that, other than in relation to the amendment of personal information, the Minister and his or her personal staff are not "public sector agencies". He further submitted that the Tribunal may have regard to extrinsic materials to confirm the ordinary meaning of the text and that extrinsic materials relating to the insertion of sections 15(6), 53(1A) and 55(1A) into the PPIP Act demonstrate that the purpose of the express inclusion of references to a Minister was to transfer the availability of the amendment of records provisions of the now repealed Freedom of Information Act 1989 (which expressly applied to Ministers) to the privacy legislation.

28 Further, Mr McDonnell noted that in its Report Protecting Privacy in New South Wales May 2010, the NSW Law Reform Commission addressed the issue of whether a Minister should be bound by the PPIP Act. It said at paragraph [2.51]:

"2.51 Finally, NSW ministers are not covered under either the Privacy Act 1988 (Cth)1 or PPIPA. However, the definition of 'agency' in the GIPA Act expressly extends the NSW access to information regime to a Minister (including a Minister's personal staff), and the Privacy Act 1988 (Cth) extends to federal Ministers. In the interests of uniformity and in the absence of a compelling reason to the contrary, we are of the view that NSW Ministers should be subject to the requirements under PPIPA.

The definition of 'public sector agency' in the Privacy and Personal Information Protection Act 1998 (NSW) should be amended to include NSW Ministers."

29 Mr McDonnell submitted that whilst the recommendation was not implemented, it is clear that in 2010 the NSW Law Reform Commission understood the Minister was not within the definition of "public sector agency".

30 Accordingly, the Respondent submits that the text, the context and the purpose of the PPIP Act and HRIP Act, confirmed by the extrinsic materials, make plain that, other than as expressed in section 15(6) of the PPIP Act, a Minister is not a "public sector agency" for the purposes of the definition in both the PPIP Act and HRIP Act. Thus, the Tribunal lacks jurisdiction to review the alleged conduct.

31 In relation to the argument presented by Ms Lucy that I have set out above, Mr McDonnell submitted that there is no basis for this submission that the Minister was a public sector agency because he was a person in relation to whom, or to whose functions, accounts were kept of administrative or working expenses because an account of his Office's administrative or working expenses on his account related to the Minister's functions. The Respondent submits that there is no basis for this submission - there is a fundamental difference at law between the Minister and the Minister's Office and the expenses of each and there is no basis for inferring that the expenses or functions of one relate to the expenses or functions of the other. Mr McDonnell submitted:

Although paras. [16]-[22] are headed "Information about Minister's accounts", they again relate to the accounts of the Minister's Office as set out in the "Minister's Office Administration Handbook dated August 2013. [The respondent notes that he has provided the applicant with the relevant Handbook as at December 2010].

The applicant's next submission (paras. [23]-[27]) is that the Minister's Chief of Staff was an "accounting officer" within the meaning of s. 35(2) of the Public Finance and Audit Act 1983 ("PF&A Act") because his role included "control of the Minister's Office budget". In context, the "Minister's Office budget" is plainly the budget of the Minister's Office. Accordingly, the applicant's submission that the Auditor-General had "power to audit" the Chief of Staff's books and records for the Minister's Office under s. 35(2) of the PF&A Act does not, in the respondent's submission, assist the applicant.

The applicant's next submission (paras. [28]-[29]) is that the Minister himself was an "accounting officer" because, under s. 10(1) of the Appropriation Act 2011, money was appropriated to him for the recurrent services of the Department of Finance & Services so that he was therefore a "person who by law ... is charged with the duty of collecting or receiving ... or is charged with the duty of disbursing ... any public money" and "a person who by law ... is authorised to commit or incur the expenditure of public money".

As to the first description, the respondent submits that the Appropriation Act 2011 does not "charge" the Minister with the "duty" of collecting or receiving or disbursing public money. It merely sets apart or allocates an appropriation amount to the Minister for the recurrent services of the Department. The Minister does not "collect", "receive" or "disburse" such money.

As to disbursing, the Appropriation Act 2011 authorises the Minister to whom the funds are appropriated to withdraw those funds from the Consolidated Fund, and also restricts the subsequent expenditure of those funds to the specific purposes prescribed. The Appropriation Act does not, however, provide legal authority for the actual expenditure of the appropriated funds. Authority for that expenditure needs to be found elsewhere, either under authority provided by another Act or under the State's executive power.

This deduction is consistent with the approach adopted by the High Court in Pape v Federal Commissioner of Taxation (2009) 238 CLR 1 and applied in Williams v Commonwealth (2012) HCA 23. Crennan J, for example, said in Williams, (at [531]) that:

"As confirmed in Pape, statutory authority for executive action (including spending) is distinct conceptually from the appropriation of funds from the consolidated revenue fund for a particular purpose."

Hayne and Kiefel JJ noted in Pape that: (at [296]; original emphasis)

"Parliamentary appropriation is the process which permits application of the Consolidated Revenue Fund to identified purposes.... The appropriation of funds, standing alone, does not and never has required application of the amounts appropriated. Any obligation to apply the funds to the permitted purpose must be found elsewhere than in the appropriation."

As to the second description, the respondent submits that, under the PF&A Act, the Minister is not a person who is authorised to commit or incur the expenditure of public money but, rather, the "person entitled" within the meaning of s. 12 of the PF&A Act to delegate such authority. Section 12(1) provides:

"12 Commitment etc of expenditure

(1) Expenditure shall be committed or incurred by an officer of an authority only within the limits of a delegation in writing conferred on the officer by a person entitled to make the delegation."

As to the applicant's next submission (para. [30]) that "Departmental accounts were kept in relation to the appropriated sums" which were "in relation to the Minister's functions, including functions of receiving the money under the Appropriation Act 2011", no evidence is adduced to support this argument.

The applicant's next submission (paras. [31]-[32]) again relates to the Minister's office not the Minister, on this occasion as part of the Department of Premier and Cabinet.

The applicant's last submission (para. [33]) or "possibility" is that it depends on whether the Minister's Office funds were held within the Special Deposits Account. The applicant admits he does not know this. The Tribunal refused to make order No. 5 providing such information. Accordingly, the applicant cannot make such a submission here.

Applicants response to respondents submissions

The applicant submits that some of the respondent's textual arguments do not apply to the HRIP Act The respondent submits that, although the HRIP Act does not expressly apply the amendment principle of HPP8, that does not assist the applicant. The applicant accepts that ss. 53 and 55, PPIP Act apply to public sector agencies in the handling of health information. The respondent submits that, because the HRIP Act and PPIP Act are cognate legislation or in pari material, "public sector agency" must have the same meaning in both - see Pearce and Geddes, Statutory Interpretation in Australia, 7th edition, [3.36].

As to [40], the respondent submits that the words of the para, (d) definition of "public sector agency" in the PPIP Act and HRIP Act are not "plain" and, even if they were inconsistent with a construction of the Acts which excluded from their application a "Minister", they should be read down accordingly.

As to [41]-[42], the applicant hypothesises as to the mischief intended to be remedied by the amendments to ss. 15, 53 and 55, PPIP Act The first hypothesis, namely, that, should the current auditing arrangements (which the respondent submits do not apply to the Minister) change in future, the Minister will be a public sector agency for s. 15 purposes, is far-fetched and without foundation in the extrinsic material.

As to [43], the respondent submits that the interpretation of para, (d) is not "affected" by the later amendments, only confirmed by them.

As to [44], the respondent submits that whether or not it is legitimate to use extrinsic material to "determine the meaning" of a provision of an Act is an unresolved issue. Section 34, Interpretation Act provides relevantly:

"34 Use of extrinsic material in the interpretation of Acts and statutory rules

(1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:

(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or

(b) to determine the meaning of the provision:

(i) if the provision is ambiguous or obscure."

In any event, the applicant does not cavil with the respondent's submission at [2.5] to the effect that extrinsic materials, including the Agreement in Principle speech, can be used to confirm the ordinary meaning of "a public sector agency" (taking into account its context in the Act).

Moreover, it is at least agreed that extrinsic materials can be used to determine the mischief sought to be remedied and thus the "legislative purpose". In this case, they amount to the same thing, namely, to ensure that the Minister is bound by a provision by which he would otherwise not be bound.

As to [45], the respondent notes the applicant's concession that the NSW Law Reform Commission Report and Explanatory Memorandum "may have some relevance to the interpretation of s. 15(6)". Whether or not the relevance is confined to identifying the mischief, despite the clear words of s. 34(l)(a) and (b)(i), does not matter as the respondent repeats its previous submission that the mischief at least includes ensuring that the Minister is to be bound by provisions which would not otherwise apply to him. As an Act speaks in the present, the views of the NSW Law Reform Commission and Parliament as to the need for the amendment are fundamental. The respondent submits that such views are not irrelevant to the meaning of "public sector agency" today.

As to [46], the respondent accepts that the PPIP Act and HRIP Act are beneficial legislation. However, as Spigelman CJ said in Director General, Department of Education and Training KA77"[2006] NSWCA 270 at [49]-[50]:

"The [PPIP Act] is beneficial legislation which must be liberally interpreted in order to achieve its beneficial purpose. That does not mean that it must be interpreted in such a way that whatever may be regarded as improving its enforcement must fall within the intention of the legislature.

As the Supreme Court of the United States said in Rodriguez v United States 480 US 520 (1987) at 525-526:

"... [No] legislation pursues its purposes at all costs'"

As to [47], the applicant states that it does not "necessarily" follow that, if the Minister is not a public sector agency for PPIP Act purposes, he is not a public sector agency for HRIP Act purposes. As submitted above, ss. 53 and 55, PPIP Act apply to both legislative schemes which are cognate or in pari materia.

Discussion

32 It is not in dispute that it has been generally accepted that ministers are not covered under the PPIP Act. However, to my knowledge that matter has not been considered by this Tribunal or by the ADT. There seems to be little doubt that the question of whether the Minister is a "public sector agency" within the HRIP Act has not been determined.

33 The parties agree that the PPIP Act and HRIP Act are beneficial legislation. This is consistent with the approach that the Tribunal has taken in interpreting exemptions to the definition of "personal information". In GA & Ors v Department of Education & Training and NSW Police [2004] (GD) NSWADTAP 18 the ADT Appeal Panel noted at paragraph [48]:

"The PPIP Act is beneficial legislation and should be interpreted broadly so that people can obtain the maximum benefit from the rights they are afforded."

34 However, the PPIP Act does not give a blanket right to privacy. It strikes a balance between a person's right to privacy and the need to preserve an agency's capacity to carry out its functions: MG v Department of Education and Training [2004] NSWADT 137 at paragraph [39].

35 The legislature has not expressly included a Minister in the definition of "public sector agency". The Respondent contends that it would have been easy for it to have done so if that were the intention. That is clearly correct. However, if the Minister is otherwise caught by the terms of the definition, the failure to expressly include a Minister in the definition would not affect the application of the provision.

36 I do not agree with Mr McDonnell's submission that the words of paragraph (d) of the definition of "public sector agency" are not "plain". In my view, the words are plain. It is therefore not necessary to consider extrinsic materials.

37 As I see it, the difficulty arises in relation to whether the facts establish that the Minister is caught by paragraph (d) of the definition of "public sector agency".

38 As Ms Lucy has correctly noted, the expression "in relation to" is of wide and general import and should not be read down in the absence of some compelling reason for so doing. In my view there is no compelling reason to read down that expression in this matter.

39 The material before me suggests that the connection between the Minister's functions and the accounts kept of the expenses of his Office is a direct one. I am satisfied that those accounts are kept "in relation to" the Minister's functions.

40 The handbook notes that there must be "adequate systems of internal control operating in Ministers' offices" and the Auditor-General has authority to review the expenditure and systems of Ministers' offices". That being the case, I am satisfied that it is probable that these are accounts with respect to which the Auditor-General has powers".

41 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.

42 The Tribunal therefore has jurisdiction to hear and determine this matter.

43 In my view, the Applicant has presented sufficient argument on the basis of the material available to him to raise a reasonable inference as to these matters. The Respondent has not presented evidence to disprove the inferences that can be drawn reasonably.

44 I note Mr McDonnell's submission that that Applicant has limited material on which he has been able to base his argument concerning the account keeping and auditing of the Minister's administration or working expenses, and that no evidence is adduced to support some of the Applicant's arguments. However, it is clear that the relevant information is wholly within the knowledge of the Respondent. In my view, Ms Lucy has presented a plausible argument based on the information available to the Applicant.

45 As model litigant, the Respondent should not require the Applicant to prove a matter which it knows to be true. If the Respondent knows that the Applicant's argument is correct, notwithstanding that he does not have access to the material to prove it to be the case, then the Respondent should accept the argument. If the Respondent knows that the Applicant's argument is not correct, and the evidence to show that to be so is totally within the control of the Respondent, then the Respondent should put forward evidence to show that the argument is not correct. If necessary, that evidence could be presented to the Tribunal on a confidential basis.

46 On the material that is before me I am satisfied that, by virtue of paragraph (d) of the definition of "public sector agency", the Minister was a public sector agency for the purposes of the PPIP Act and HRIP Act.

47 In this matter the Respondent did not undertake and internal review of the alleged conduct on the grounds that the Minister was not a public sector agency. In my view the matter should be remitted for that review to take place. If the Applicant remains dissatisfied with the outcome of that review, the matter should then continue before the Tribunal. I propose that the determination be completed within 28 days of this decision.

Order

(1) The Tribunal therefore has jurisdiction to hear and determine this matter.

(2) The matter is remitted for determination by the Respondent.

(3) The determination is to be completed within 28 days of the date of this decision.

(4) The matter is listed for a further planning meeting on 13 January 2015 at 11.30 am

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

Decision last updated: 03 December 2014