AIT18 v Australian Information Commissioner

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FEDERAL COURT OF AUSTRALIA

AIT18 v Australian Information Commissioner [2018] FCAFC 192

Appeal from: TYGJ and Information Commissioner [2017] AATA 1560
File number: VID 1156 of 2017
Judges: LOGAN, GRIFFITHS AND FARRELL JJ
Date of judgment: 13 November 2018
Catchwords:

HUMAN RIGHTS – Privacy – where the applicant claimed compensation from the Department of Veterans’ Affairs (DVA) for injuries he suffered while serving as a member of the Royal Australian Air Force and Australian Defence Force – where the applicant was dissatisfied with the processing of his claims by DVA and engaged in vitriolic, threatening and offensive language towards DVA personnel – whether the Administrative Appeals Tribunal erred in finding that DVA had not breached s 14 of the Privacy Act 1988 (Cth) and Information Privacy Principles 11.1(a) or (d) by disclosing the applicant’s personal information to a senior medical officer, the Head of Joint Health Command in the Department of Defence and the Chief of Air Force

STATUTORY INTERPRETATION – construction of the Privacy Act 1988 (Cth) and Information Privacy Principle 11.1 – whether the applicant was reasonably likely to have been aware that information of the kind disclosed by DVA was usually passed to those to whom the disclosures were made – whether disclosure was required or authorised by or under law
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), s 44

Defence Force Discipline Act 1982 (Cth), s 60(1)

Military Rehabilitation and Compensation Act 2004 (Cth)

Occupational Health and Safety Act 1991 (Cth), s 16

Privacy Act 1988 (Cth), ss 2A, 6, 14, 29, 96(1)(c)

Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth)

Social Security (Administration) Act 1999 (Cth), ss 192, 196, 197(1))

Telecommunications (Interception) Act 1979 (Cth)

Invasion of Privacy Act 1971 (Qld), s 43(1)

Cases cited:

CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384

Coco v The Queen [1994] HCA 15; 179 CLR 427

Commonwealth of Australia v Human Rights and Equal Opportunity Commission [1998] FCA 3; 76 FCR 513

Craig v South Australia [1995] HCA 58; 184 CLR 163

Department of Premier and Cabinet v Hulls [1999] 3 VR 331

IW v City of Perth [1997] HCA 30; 191 CLR 1

Minister Administering The Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48; 237 CLR 285

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24

Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; 231 CLR 1

NBGM v Minister for Immigration and Multicultural Affairs [2006] HCA 54; 231 CLR 52

New South Wales Aboriginal Land Council v Minister Administering The Crown Lands Act [2016] HCA 50; 260 CLR 232

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355

R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13

Rahman v Ashpole [2007] FCA 1067

Re TYGJ and Privacy Commissioner and Secretary, Department of Veterans'…

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Details
Case
[2018] FCAFC 192
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the applicant, AIT18, brought an appeal against the decision of the Administrative Appeals Tribunal (AAT), which had dismissed the applicant’s claim against the Australian Information Commissioner. The applicant sought compensation from the Department of Veterans’ Affairs (DVA) for injuries he sustained while serving in the Royal Australian Air Force and Australian Defence Force. He was dissatisfied with the processing of his claims by DVA and engaged in vitriolic, threatening, and offensive language towards DVA personnel. The applicant claimed that DVA breached section 14 of the Privacy Act 1988 (Cth) and Information Privacy Principles 11.1(a) or (d) by disclosing his personal information to a senior medical officer, the Head of Joint Health Command in the Department of Defence, and the Chief of Air Force. The court was required to determine whether the AAT erred in finding that DVA had not breached the Privacy Act and the Information Privacy Principles by disclosing the applicant’s personal information.

The court considered the applicant's argument that the AAT should have adopted a broader approach in construing the Privacy Act and the Information Privacy Principles. The court noted that while remedial legislation should be accorded a fair, large, and liberal interpretation, this principle should not obscure the essential question of the meaning of specific words. The court found that the AAT did not err in its approach to the construction of the Privacy Act and the Information Privacy Principles. The AAT correctly found that the disclosures made by DVA were of the kind that is usually passed on to those to whom the disclosures were made, and the applicant was reasonably likely to have been aware of this. The court concluded that the AAT's decision was not erroneous.

The court dismissed the appeal and ordered that the applicant pay the second respondent's costs, as agreed or assessed. The court emphasised that the AAT had correctly applied the principles of statutory interpretation and found that the disclosures made by DVA were not a breach of the Privacy Act and the Information Privacy Principles. The court's decision highlights the importance of understanding the particular issue to which the task of statutory construction relates in any individual case and the need for caution in applying the principle of a broad or liberal interpretation of remedial legislation.

Orders

Orders of the court

1. The appeal be dismissed.

2. The applicant pay the second respondent’s costs, as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It was shortly after receipt of this email that a decision was made within DVA to allocate the applicant’s file to a single point of contact within DVA with a view to limiting the impact of his behaviour and to protect all DVA staff from further aggressive behaviour by him. (c) The AAT’s reasons for decision summarised Returning to the Reasons, the AAT found that the personal information passed on by DVA in the three Disclosures reflected DVA’s concern for the applicant’s health and for the wellbeing of its own staff. It described Disclosures 1 and 2 as reflecting DVA’s search for guidance as to whether it should be concerned about the applicant’s behaviour and what it should do in response (Reasons [250]). Having characterised the information as being of that “kind”, the AAT then turned its attention to whether information of that kind is usually passed on to an individual’s medical practitioner and employer, as occurred here. The AAT found that Disclosures 1 and 2 involved information of the kind that is usually passed on to those to whom the disclosures were made. The AAT stated that Disclosure 1 enabled DVA to obtain information regarding the applicant’s psychiatric history and Disclosure 2 led to arrangements being made for the applicant to have a psychiatric evaluation of his current state of mental health (Reasons [261]). The AAT took into account DVA’s responsibilities under the Occupational Health and Safety Act 1991 (Cth) (OHS Act) to its own staff. The Disclosures enabled it to obtain further information which could be passed on to Professor McFarlane for advice. Accordingly, the AAT found that Disclosures 1 and 2 were a necessary part of a process that enabled DVA to fulfil its statutory responsibilities under s 16 of the OHS Act and was information of a kind that is usually passed on to those to whom the Disclosures were made here (Reasons [263]). As to Disclosure 3, the AAT noted that it occurred against the background of an escalation in the tone, irascibility and inappropriateness of the applicant’s correspondence. Having regard to the character of that correspondence and the circumstances in which it occurred, the AAT found that it was reasonable for DVA to form the view that the applicant might be bringing discredit on the ADF within the meaning of s 60(1) of the Defence Force Discipline Act 1982 (Cth) (DFD Act) and so committing an offence (Reasons [266]). Accordingly, it found that Disclosure 3 related to information of a kind that is usually passed on to a person such as the Chief of Air Force. In concluding that the applicant was reasonably likely to have been aware that information of the kind is usually passed to the medical practitioners and the Chief of Air Force, the AAT took into account that the applicant was a serving member of the ADF and held a rank with some seniority in the RAAF, his tertiary qualifications and his status as a recognised expert practitioner in his field. It found that a person with “his experience, education and rank is reasonably likely to have been aware that if he engaged in behaviour of the sort that he did, whether he was injured or not, there would be those who would seek the advice of medical practitioners in the ADF” and that his behaviour would be drawn to the attention of his superiors (Reasons [277]). Accordingly, the AAT concluded that each of the three Disclosures fell within IPP 11.1(a).

Ratio Decidendi

Legal Principle Established

Both DVA and the Information Commissioner provided detailed written outlines of their submissions. It is unnecessary to set them out in what already are lengthy reasons for judgment. The primary submissions are substantially reflected in the reasons given below for dismissing the appeal. We will also address below the role of the Information Commissioner in the appeal in determining the appropriate orders for costs. CONSIDERATION AND DISPOSITION OF THE APPEAL(a) The proper approach to construction of the Privacy Act : Grounds 1-2 In view of the centrality to the applicant’s appeal of whether or not the AAT erred in its approach to the construction of remedial legislation such as the Privacy Act, it is desirable to address that issue immediately. For the reasons that follow, we are not satisfied that the applicant has established that the AAT adopted an erroneous approach. As noted above, the applicant relied heavily on Coco in support of his challenge to the AAT’s reasoning and findings concerning both IPP 11.1(a) and (d). In particular, he contended that the following passage from Coco at [10] is critical and describes the approach which the AAT should have taken in construing those IPPs (footnote omitted):10.The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights (See Chu Kheng Lim v. Minister for Immigration (1992) 176 CLR 1 at 12 per Mason CJ). It is well established that remedial or beneficial legislation should be accorded a “fair, large and liberal interpretation”, as opposed to one which is literal or technical (see, for example, IW v City of Perth [1997] HCA 30; 191 CLR 1 at 12). But the matter is more nuanced than is suggested by either that general proposition or the applicant. Subsequent caselaw has properly emphasised the need for caution in applying this canon of construction. For example, in New South Wales Aboriginal Land Council v Minister Administering The Crown Lands Act [2016] HCA 50; 260 CLR 232 the High Court emphasised the importance of understanding the particular issue to which the task of statutory construction relates in any individual case. Their Honours drew a distinction between a situation where a Court is asked to construe a statute where there are choices available in the statute’s construction, in which case the choice can be guided by taking a broader approach on the basis of the beneficial purpose of the statute, as opposed to a case where the exercise of statutory construction is focused on the meaning of specific words. Importantly, the High Court said at [32] and [33] (footnotes omitted):32.It has been said that remedial or beneficial legislation should be accorded a “fair, large and liberal interpretation”, rather than one which is literal or technical. At issue in R v Kearney; Ex parte Jurlama was whether a claim could be made under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) with respect to land which could only acquire the necessary character of being “traditionally owned” by reference to land which lay outside that which was available to be claimed. Gibbs CJ (with whom Brennan, Deane and Dawson JJ agreed) said:If the section is ambiguous it should in my opinion be given a broad construction, so as to effectuate the beneficial purpose which it is intended to serve.The statute in that case left the question open and provided the Court with choices in its approach to the statute's construction. In such a circumstance the Court was clearly justified in adopting a broader approach on the basis of the beneficial purpose of the statute.33.That is not the situation which arises with respect to s 36(1) of the ALR Act, where it is the meaning of particular words which is in question. In Victims Compensation Fund Corporation v Brown it was pointed out that to commence the process of construction by posing the type of construction to be afforded – liberal, broad or narrow – may obscure the essential question regarding the meaning of the words used. It is one thing to say that no restricted construction should be given to legislation which confers benefits; but if the focus is on the meaning of specific words, the circumstance for a liberal application may not arise.