AIL v Department of Premier and Cabinet

[2012] NSWADT 191

Administrative Decisions Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	AIL v Department of Premier and Cabinet [2012] NSWADT 191
Hearing dates:	12 June 2012
Decision date:	19 September 2012
Jurisdiction:	General Division
Before:	N Isenberg, Judicial Member
Decision:	The decision under review is affirmed.
Catchwords:	Complaint to Anti-Discrimination Board - provision of information arising out of workers compensation claim - breach of HPPs - exceptions
Legislation Cited:	Anti-Discrimination Act 1977 Health Records Information Privacy Act 2002 Privacy and Personal Information Protection Act 1998
Cases Cited:	Department of Education & Training v GA (No 3) [2004] NSWADTAP 50 Department of Education and Communities VK [2011] NSWADTAP 61 Kioa v West (1985) 159 CLR 550 KO and KP v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 56 NK v Northern Sydney Central Coast Area Health Service [2010] NSWADT 258 OD v Department of Education and Training (GD) [2005] NSWADTAP 74 PN v Department of Education and Training [2010] NSWADTAP 59
Category:	Principal judgment
Parties:	AIL (Applicant) NSW Department of Premier and Cabinet (Respondent)
Representation:	AIL (Applicant in person) Crown Solicitor's Office (Respondent)
File Number(s):	123031

REASONS FOR DECISION

1. The background has been largely extracted from the internal review, and, broadly, was not in dispute.

1. On 28 March 2010, the applicant lodged a formal grievance of bullying against his manager, Mr T of the Workforce Planning Unit, Department of Premier and Cabinet ('the Department'). One of his complaints was that Mr T had allegedly bullied and intimidated him during a feedback meeting held on 11 March 2010 ('the meeting').

1. On 12 April 2010, the Department engaged a consultant to undertake an investigation and review the applicant's grievances. The consultant's report of 24 May 2010 included the following findings:

• "(a) there was no evidence of a workplace culture of bullying and harassment within the Department, including the Workforce Planning Unit;
• (b) officers in the Department's Workforce Planning Unit and their managers, including Mr T, had not breached any Departmental policies or procedures;
• (c) a medical and psychological review of [the applicant's] health (Welfare check) be undertaken to ascertain his ability to return to work; and
• (d) the applicant had not followed the grievance process of initially attempting to raise his grievance issue with Mr T."

1. He was invited to comment on the consultant's report and provided his comments approximately 2 weeks later. On 25 June 2010, the applicant was informed of the Department's decision about his grievance, following the investigation and his comments. He requested a review of the decision, which had adopted the consultant's findings. The Department engaged Mr Baldwin to undertake the review and requested that he consider the consultant's report and the process the Department followed in conducting the investigation and making the decision that no claim of workplace bullying could be substantiated.

1. Mr Baldwin's report of 18 September 2010 contained the following findings in relation to the consultant's report:

• "The finding there was no evidence of a workplace culture of bullying and harassment within the Department generally (as opposed to the Workforce Planning Unit) was beyond the terms of reference and should not have been included;
• concerns expressed by the applicant about the treatment of the evidence of anonymous witnesses and the finding that he did not follow the grievance process have substance, but the investigation process was otherwise appropriate; and
• there was no basis for setting aside the report or calling into question its general conclusions that the applicant's complaints of bullying and harassment against Mr T were not substantiated."

1. On 24 September 2010, the applicant was informed that no claim of workplace bullying and harassment by Mr T could be substantiated.

Workers' Compensation Claim

1. Meanwhile, on 24 June 2010, the applicant lodged a workers' compensation claim with the Department which was referred to its insurer, Allianz. The applicant sought compensation for "psychological injury - anxiety and depression" as a result of "workplace bullying between August 2009 and March 2010".

1. Allianz accepted the claim for a closed period from 29 March 2010 to 27 July 2010. In its letter to the applicant Allianz set out the reasons for its decision and attached a WorkCover medical certificate signed 17 June 2010 and a copy of a "Pre-Liability and Assessment summary and report" prepared by Ms Lyn Burgess, Centre for Corporate Health, dated 12 July 2010 ('the Burgess assessment').

Applicant's Complaint to the Anti-Discrimination Board

1. On 25 July 2011, the applicant lodged a complaint with the Anti-Discrimination Board ('the Board') alleging he was sexually harassed during the course of his employment with the Department. Specifically, he alleged that, at the meeting, Mr T used "a sexually inappropriate analogy". He also stated that this allegation had formed part of his workplace grievance, but had been "overtaken by the overall grievance case and received no attention from the Human Resources area".

1. On 19 August 2011 the Board, wrote to the Director-General of the Department. The Board's letter:

"advised that the applicant had claimed he was sexually harassed in the course of his employment with the Department and attached a copy of the complaint;

explained the Board's obligation under the Anti-Discrimination Act 1977('AD Act') to investigate any complaints that are in writing and appear to be covered by this Act and observed that the applicant's allegations appear to fall within ss. 22A, 22B and 53 of the AD Act,

explained the Board's role to investigate complaints and, if satisfied there are grounds for proceeding further, to help the parties discuss the complaint and reach a settlement if possible;

explained that, if the parties cannot agree on settlement, the complaint may be referred to the Equal Opportunity Division of the Administrative Decisions Tribunal to determine whether discrimination occurred; and

stated that the Board "will deal with this complaint confidentially" and asked that both parties "also treat this complaint as confidential".

1. The Board's (essentially pro forma) letter then set out - in simple terms - how it investigates complaints, noting that it discusses the complaint with the complainant, obtains copies of any relevant documents and witness statements from them, and then, contacts the other party for its 'side of the story', relevant documents and witness statements.

1. The letter asked the Department to provide, by a specified date, a written answer to the complainant's allegations set out in the complaint form and any other information that might help the Board to investigate the complaint.

1. It noted that if a written reply was not provided by the deadline, and if no extension of time was sought, the Board may arrange a compulsory conciliation conference or may refer the matter to the Administrative Decisions Tribunal for hearing.

1. On 14 September 2011, the Department sent a letter to the Board and attaching various documents, responding to the Board's request of 19 August 2011 ('the response'). The response, outlined among other things:

"how the applicant's grievance was handled by the consultant; that the investigation found the applicant's claims to be unsubstantiated; and that "[a]t no stage during the course of the investigation did [the applicant] raise an allegation of sexual harassment with either [the consultant] or Corporate Governance Branch staff";

the review of the first investigation undertaken by Mr Baldwin, that Mr Baldwin determined the initial investigation's findings should be upheld and that "it is recorded in Mr Baldwin's review report that [the applicant] said he had not raised or discussed his interpretations of Mr T's comments with [the consultant]";

that, in June 2010, the applicant lodged a workers' compensation claim for depression citing harassment as the cause of the depression, that Allianz investigated the claim and consequently denied liability and that "[a]gain, the allegation of sexual harassment was not raised by AIL";

1. The response also:

noted that "on the numerous occasions [the applicant] has either corresponded with or been afforded the opportunity to meet with senior [Department] staff regarding his claims and investigations' outcomes he had at no time alleged sexual harassment had occurred"; and

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

1. The response attached:

(1)   the applicant's grievance dated 28 March 2010

(2)   the consultant's investigation report

(3)   Mr Baldwin's review report

(4)   correspondence from the Department to the applicant dated 24 September 2010

(5)   correspondence from Allianz, which comprised a letter from Allianz to the Department dated 3 August 2010 and the following enclosed documents:

(6)   letter from Allianz to the applicant dated 28 July 2010;

(7)   the Burgess assessment; and

(8)   WorkCover medical certificate signed 17 June 2010.

1. On 10 November 2011, the Board wrote to the Department, advising that it had completed its investigation of the applicant's complaint and had decided to decline it under s. 92(1) of the AD Act because it was lacking in substance.

Applicant's Privacy Complaint

1. On 14 October 2011, the Department received a complaint from the applicant made under s. 53 of the Privacy and Personal Information Protection Act 1998 ('PPIP Act'), as applied by s. 21 of the Health Records Information Privacy Act 2002 ('HRIP Act').

1. The applicant described the conduct complained of as "Action of use and disclosure of health information to the Anti-Discrimination Board by the NSW Department of Premier and Cabinet without my consent nor in accordance with HPPs". The applicant ticked "use of my personal or health information" and "disclosure of my personal or health information" as the dealings with information that describes his complaint.

1. The Department undertook an internal review, dated 11 January 2012. The internal review found that:

"the Department had not breached HPP 9 in Sch. 1 to the HRIP Act,

HPPs 10 and 11 did not apply as the information was not collected by the Department; and

in the event HPPs 10 and 11 did apply, non-compliance was permitted, necessarily implied or reasonably contemplated under anti-discrimination laws for the purposes of the exceptions in HPPs 10(2)(b) and 11(2)(b)."

Application to the Tribunal

1. The applicant filed his application for review of the Department's conduct under s. 55 of the PPIP Act, as applied by s. 21 of the HRIP Act, on 6 February 2012.

1. The applicant's review application identifies that he seeks a review of the Department's alleged contravention of HPPs 10 and 11 stating:

"[the Department] used workers compensation documents for other purpose for which collected [sic] (injury management and return to work), and released sensitive health information (diagnosis) without my consent."

The applicant seeks the payment of damages and an order requiring the Department "to take specified steps to remedy any loss or damage suffered by [him], e.g. requesting return of documents from Anti-Discrimination Board, destruction of returned records, and review of processes and procedures within [the Department] regarding handling and management of workers compensation documents."

Issue for the Tribunal

1. The applicant limited his application to the disclosure by the Respondent to the Board of the health information contained in the Burgess assessment.

1. The respondent accepted that HPPs 10 and 11 apply but contended that the exceptions in HPPs 10(2)(b) and 11(2)(b) apply to its conduct.

1. The hearing, it was agreed, was in relation to liability only, with further submissions, if required.

Scope of the Tribunal's review

1. The applicant submitted that, because the Department accepted a collection of health information had occurred for the purposes of HPPs 10 and 11, the collection HPPs, such as HPPs 4, 5 and 6, "appear to be applicable". This conduct was not, however, raised in the applicant's internal review, which the applicant acknowledged in his submissions.

1. An application for internal review, reasonably construed, sets the scope of the review by the Tribunal: KO and KP v Commissioner of Police, New South Wales Police (GD) [2005] NSWADTAP 56 at [13]; OD v Department of Education and Training (GD) [2005] NSWADTAP 74 at [12]. This means that the Tribunal cannot review conduct that was not the subject of the internal review application: Department of Education & Training v GA (No 3) [2004] NSWADTAP 50 at [7].

1. It follows that the Tribunal has no jurisdiction to engage in any review of the collection of the applicant's health information under HPPs 4, 5 and 6.

CONSIDERATION

1. The applicant submitted, in effect, that the Burgess assessment was irrelevant to the investigation by the Board. His complaint to the Board did not refer to his workers' compensation matter, and his complaint focused solely on 'sexual harassment' that he felt it had been overtaken or overlooked by his overall bullying grievance. It was his intention to only have that aspect considered by the Board, and not his workers' compensation claim as a whole. In the response the respondent inappropriately disclosed his health information from his workers' compensation documents. Although the two events - the workplace grievance and the workers' compensation claim - overlapped in time, they were unrelated.

1. The applicant referred me to NK v Northern Sydney Central Coast Area Health Service [2010] NSWADT 258 at [55] & [58]. It was submitted that in that case there was unjustified logic behind the collection of NK's health information and that the same logic applied in linking the workers' compensation claim to the sexual harassment allegations. However, I have read the case carefully but do not find the reference to the case to have been helpful - the case turned on its own facts, and there was, in my view, no parallel to be drawn with the information in this matter.

1. The Department indicated on page 10 of the internal review that material:

"... provided by [the Department] to the [Board] was genuinely provided to assist the [Board] to investigate AIL's complaint. It contained information relevant to the [Board's] determination of the facts in issue (whether or not AIL was sexually harassed in March 2010)."

1. The applicant submitted that, importantly, nowhere in the Burgess assessment nor the other workers' compensation documents forwarded to the Board is there any specific mention of the alleged sexual harassment incident that occurred at the meeting about which he complained.

1. Further, the applicant submitted that the Department was selective in its choice of documents when responding to the Board's invitation to provide 'Any other information that you think might help us investigate this complaint'. It did not, for example, provide a copy of the applicant's response to the consultant's investigation. The applicant submitted that in fairness, that also should have been provided to the Board. Additionally, he said, copies of other documents such as medical certificates and return-to-work plans were not provided - only two particular documents that might cast doubt on his psychological condition. The applicant said he believed the Department had disclosed the Burgess assessment to discredit his complaint in relation to the sexual harassment.

1. In the applicant's grievance which gave rise to the investigation by the consultant the applicant referred to various aspects of the conduct of his manager, Mr T from August 2009 which were alleged to be bullying. One complaint related to his interaction with Mr T at the meeting. I have carefully read the whole of the applicant's grievance, and, in particular, his account of what transpired at the meeting. He wrote there of some feedback given by Mr T about which he was 'extremely shocked and surprised' and that he believed the feedback was 'nothing short of intimidation'. Upon reflection, he wrote, that he felt 'personally threatened' and believed Mr T was 'bullying [him]'. He wrote of an innuendo, based on his being 'too friendly' with another staff member, Mr S, who may have been in a position to 'influence' or 'intimidate' him. However, nowhere in his grievance does he allege sexual harassment. The response referred to the investigation of his grievance and noted that there was no reference in the consultant's investigation to sexual harassment.

1. After the investigation the applicant wrote to the Department and was critical of the consultant's investigation. A copy of that letter was tendered at the hearing. In that letter he referred to Mr T having escalated his previous bullying conduct such that, at the meeting, 'he used sexual innuendo in an attempt to drive a division between Mr S and [him]'. It appears that this letter gave rise to Mr Baldwin's review.

1. Mr Baldwin's report was provided with the response. It was noted that Mr Baldwin reported that he had interviewed the applicant and had considered 'extensive critique' of the consultant's investigation. He wrote:

'[Mr T] used sexual innuendo in an attempt to drive a division between Mr S and me'.

1. Mr Baldwin however interpreted Mr T's comments, in context, as being feedback on the applicant's management style which risked compromising him in dealing with Mr S's poor performance. Mr Baldwin's report recorded that the applicant said he had not raised his interpretation of Mr T's comments with the consultant who had conducted the investigation, although, the applicant, inferring from Mr T's comments that Mr T alleged there was a sexual relationship between the applicant and Mr S, believed that he had raised the allegation.

1. Against this background, the applicant lodged his workers' compensation claim for "psychological injury - anxiety and depression" as a result of "workplace bullying between August 2009 and March 2010". He did not refer there to sexual harassment. Similarly, the Burgess assessment, for which he was interviewed, made no reference to alleged sexual harassment.

1. The applicant referred to the Department's Personnel Handbook. Section 5.3 covers administering employee records. Referring to 5.3.4.9 titled Use and disclosure of employee records, personal information is defined as information or an opinion about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion. It further states that personal information is only to be disclosed outside the department with the consent of the employee; to prevent or lessen a threat to the life or health of a person; or by requirement or authority of law. He submitted that not one of those three conditions has been met to justify the Department's use and disclosure to the Board of his personal information.

1. This point need only be shortly addressed. The Guidelines, cannot override the respondent's statutory obligations vis-a-vis the Board.

Disclosure of the applicant's health information (HPP 11) and Use of the applicant's health information (HPP 10)

1. HPP 11(1) provides, relevantly that:

"an organisation that holds health information must not disclose the information for a purpose ... other than the purpose ... for which it was collected" unless an exception applies.

1. HPP11(2)(b) provides, relevantly that:

"an organisation is not obliged to comply with this clause if non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law ..."

1. HPP 10, referring to 'use', is in the same terms.

1. "Disclosure" refers to "the action taken by an agency to provide the information to a third party external to the agency, such as another agency or a private sector functionary and "use" refers to "action taken by the agency to use information for its own purposes": Department of Education and Communities VK [2011] NSWADTAP 61 at [20 and 21]. The respondent did not dispute that the Burgess assessment contains the applicant's health information. It also did not dispute that it had disclosed the Burgess assessment to the Board in the response, nor that it used the Burgess assessment and, by implication, the health information it contained, in responding to the Board's request of 19 August 2011.

1. The respondent submitted, however, that it was not required to comply with HPP 11(1) or HPP 10(1) in responding to the Board's request because non-compliance was "otherwise permitted (or is necessarily implied or reasonably contemplated)" under the AD Act for the purposes of HPP 11(2)(b) and HPP 10(2)(b).

Was non-compliance reasonably contemplated under the AD Act?

1. In PN v Department of Education and Training [2010] NSWADTAP 59, the Appeal Panel considered the appropriate approach to applying s. 25(b) of the PPIP Act, which is in (relevantly) identical terms to HPPs 10(2)(b) and 11(2)(b). The Appeal Panel stated, at [54]-[60]:

54 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."

1. In Department of Education and Communities v VK, the Appeal Panel considered the conclusion at first instance that a transaction, such as a disclosure of personal information, cannot be genuinely undertaken for the purposes of the workers' compensation scheme if the information conveyed is not relevant for the purposes of the workers' compensation legislation. In rejecting that analysis, the Appeal Panel stated as follows:

"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.

1. 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.

1. 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'.

1. In my view, subdivision 3 of Div. 2, Pt. 9 of the AD Act necessarily implies or reasonably contemplates non-compliance with HPP 11(1) in the circumstances of this case.

1. The Board's complaint-handling functions are set out in Div. 2 of Pt. 9 of the AD Act.

1. Subdivision 3 concerns the investigation and conciliation of complaints. The President is required to investigate each complaint accepted under s. 89B: s. 90(1).

1. Section 90B, which falls within subdivision 3, deals with the supply of information and documents to the Board and provides relevantly:

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.

1. Section 90B specifically empowers the President of the Board to require a respondent to a complaint to provide - that is, disclose - information or documents. Construed in the context of subdivision 3 as a whole, s. 90B is designed to enable the President to obtain information and documents from the parties to a complaint for the purposes of investigating an accepted complaint in accordance with s. 90(1). The provision of information or documents requested by the President in the course of an investigation under s. 90B must necessarily involve the disclosure of information personal to the relevant individual, whether personal information or health information.

1. Applying PN (at [55]), the initial consideration is whether the subject matter of subdivision 3, Div. 2 of Pt. 9 of the AD Act more generally, is the kind of subject matter with which HPP 11 and 10 are concerned in the circumstances of this case.

1. The investigative nature of the functions conferred on the President under subdivision 3 also impliedly empowers the President to gather information from the parties to the complaint, or other sources, albeit voluntarily. To "investigate" means "to search or inquire into; search or examine into the particulars of; examine in details" or "to examine in order to obtain the true facts" (Macquarie Dictionary). Clearly, this means the President must consider more than simply the information provided by the complainant in the complaint. In order for the President to "search or inquire into" the substance of the complaint, the President must be in a position to request information from a respondent to ascertain the respondent's version of events.

1. As a matter of procedural fairness, it would also be expected that the respondent must have the opportunity to have input into the President's investigative process: Kioa v West (1985) 159 CLR 550. The resultant provision of information, including the respondent's "side of the story" must, given the nature of a complaint under the AD Act, necessarily involve the disclosure of information personal to the relevant individual.

1. Applying PN (at [55]), the initial consideration is whether the subject matter of subdivision 3, Div. 2 of Pt. 9 of the AD Act more generally, is the kind of subject matter with which HPP 11 and 10 are concerned in the circumstances of this case.

1. The final consideration outlined in PN is whether the disclosure of information that occurred in the context of this case was "genuinely undertaken for the purpose of the scheme", that is, that it was done in good faith for the purpose of the scheme. This step does not require a "microscopic comparison" of the AD Act provisions: VK at [54]. In particular, it requires consideration of "the overall circumstances of the communication", rather than "drilling down to the specific elements of the communication": VK at [14].

1. The response provided a reply to the applicant's allegations and information considered by the Department to be of assistance to the Board's investigation. Before concluding that Mr T did not commit an act of sexual harassment at the meeting, it outlined, albeit erroneously, its view that the applicant had not previously raised an allegation of sexual harassment. It was correct though in asserting that it was not raised in the course of the consultant's investigation, nor during Allianz's investigation of his workers' compensation claim. While the Burgess assessment refers to events that occurred at the meeting it does not refer to any allegation of sexual harassment being made. In those circumstances it was entirely appropriate that the Burgess assessment might be considered relevant to the Board's consideration of the applicant's complaint of sexual harassment. I do not accept the applicant's contention to the effect that the Burgess report was provided maliciously. I agree the applicant's submissions that it may have been prudent to have included the applicant's own statement, but the applicant had previously had the opportunity to comment to Mr Baldwin who had incorporated the applicant's comments, and who had had the benefit of the statement.

1. It is not necessary to establish that the information provided by the Department was relevant to the Board's investigation, merely that it was provided for the purpose of the legislative scheme, that is, s. 90B: VK at [16]. The information, which appears to have been provided to demonstrate (albeit erroneously) that the applicant had not previously raised an allegation of sexual harassment, was clearly provided for the purpose of responding to the Board's request. It constituted a "reply to the complainant's allegation" and information the Department thought "might help [the Board] investigate the complaint". That the applicant considers additional or different information should have been provided is immaterial to the question of whether the information that was actually provided was done so for the purpose of the legislative scheme.

1. There is no ground for concluding that the use and disclosure of the information, by the Department, was other than genuinely undertaken for the purpose of the investigative regime in subdivision 3.

CONCLUSION

1. In summary, subdivision 3 of Div. 2, Pt. 9 of the AD Act necessarily implies or reasonably contemplates non-compliance with HPP 11(1) and HPP 10(1) in the circumstances of this case.

1. The decision under review is affirmed.

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Amendments

11 June 2013 - formatting error. Order be replaced by "The Tribunal decides not to take any action on the matter"

Amended paragraphs: 46

Decision last updated: 11 June 2013