AQO v Minister for Finance and Services

[2016] NSWCA 248

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

AQO v Minister for Finance and Services [2016] NSWCA 248

Hearing dates:

14 March 2016

Date of orders:

05 September 2016

Decision date:

05 September 2016

Before:

McColl JA at [1], Basten JA at [106], Ward JA at [175]

Decision:

(1) Direct that the applicant continue to be known by the letters AQO and direct, pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), that information tending to reveal his identity not be disclosed, on the grounds that such an order is necessary to prevent prejudice to the proper administration of justice and in the public interest, which in this respect significantly outweighs the public interest in open justice, within s 8(1)(a) and (e).

 

(2)   Grant the applicant leave to appeal from the decision of the Appeal Panel of the Civil and Administrative Tribunal given on 11 August 2015.

 

(3)   Deem the draft notice of appeal contained in the white folder to have been filed and to be the notice of appeal.

 

(4)   Set aside the orders of the Appeal Panel allowing the appeal to it and dismissing the application for review.

 

(5)   In place of those orders, order that the appeal to the Appeal Panel be dismissed and remit the matter to the Tribunal for further consideration of the application before it.

 (6)   Order that the Minister pay the applicant’s costs of the proceedings in this Court.

Catchwords:

STATUTORY INTERPRETATION – where applicant made privacy complaint seeking internal review of Minister’s alleged conduct in obtaining and using applicant’s personal and health information – Privacy and Personal Information Protection Act 1998 (NSW), s 53 – Health Records and Information Privacy Act 2002 (NSW), s 21 – whether definition of “public sector agency” in each Act extended to a Minister – Privacy and Personal Information Protection Act 1998 (NSW), s 3 – Health Records and Information Privacy Act 2002 (NSW), s 4

 

STATUTORY INTERPRETATION – whether later amendments to principal Act relevant to statutory interpretation

 

STATUTORY INTERPRETATION – interpretation of legislation in pari materia

WORDS & PHRASES – “person or body” – Privacy and Personal Information Protection Act 1998 (NSW), s 3 – Health Records and Information Privacy Act 2002 (NSW), s 4

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)
Constitution Act 1902 (NSW)
Court Suppression and Non-publication Orders Act 2010 (NSW)
Criminal Code (WA), s 570D
Freedom of Information Act 1989 (NSW)
Government Sector Employment Act 2013 (NSW)
Government Information (Public Access) Act 2009 (NSW)
Government Information (Public Access) (Consequential Amendments and Repeal) Act 2009 (NSW)
Independent Commission Against Corruption Act 1988 (NSW), s 3
Interpretation Act 1987 (NSW)
Members of Parliament Staff Act 2013 (NSW)
Privacy Act 1988 (Cth)
Privacy and Personal Information Protection Act 1998 (NSW)
Privacy and Government Information Legislation Amendment Act 2010 (NSW), Sch 1[2], [10].
Health Records and Information Privacy Act 2002 (NSW)
Public Finance and Audit Act 1983 (NSW), ss 4, 6

Cases Cited:

AGU v Commonwealth of Australia (No 2) (2013) 86 NSWLR 348; [2013] NSWCA 473
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41
Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568; [2005] HCA 26
Allina Pty Ltd v Federal Commissioner of Taxation (1991) 28 FCR 203
AQO v Gregory Pearce MLC [2014] NSWCATAD 210
Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106
Baini v R (2012) 246 CLR 469; [2012] HCA 59
Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334; [1999] HCA 9
Betella v O’Leary [2001] WASCA 266
Bradken Consolidated Ltd v BHP Co Ltd (1979) 145 CLR 107; [1979] HCA 15
Bropho v State of Western Australia (1990) 171 CLR 1; [1990] HCA 24
Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47
Chippendale Printing Co Pty Ltd v Commissioner of Taxation (1996) 62 FCR 347
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2
Commissioner of Stamps (South Australia) v Telegraph Investment Company Pty Limited (1995) 184 CLR 453; [1995] HCA 44
Deal v Father Pius Kodakkathanath [2016] HCA 31
Deputy Federal Commissioner of Taxes (SA) v Elder’s Trustee and Executor Co Ltd (1936) 57 CLR 610; [1936] HCA 64
Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher (2015) 254 CLR 489; [2015] HCA 10
Fountain v Alexander (1982) 150 CLR 615; [1982] HCA 16
Grain Elevators Board (Vic) v Dunmunkle Corporation (1946) 73 CLR 70; [1946] HCA 13
Griffiths v The Trustees of the Parliamentary Contributory Superannuation Fund [2012] NSWCA 231
Hall v Jones (1942) 42 SR (NSW) 203
Hepples v Commissioner of Taxation (Cth) (1992) 173 CLR 492; [1992] HCA 13
Hooker v Gilling [2007] NSWCA 99; (2007) 48 MVR 136
Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14
Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348; [1992] FCA 624
IW v City of Perth (1997) 191 CLR; [1997] HCA 30
Kelly v R (2004) 218 CLR 216; [2004] HCA 12
Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622; [1984] HCA 55
KT v Sydney Local Health Network [2011] NSWADT 171
Lennon v Gibson & Howes Ltd (1919) 26 CLR 285
Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7
Nicholls v The Queen (2005) 219 CLR 196; [2005] HCA 1
NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90; [2004] HCA 48
Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404; [1994] HCA 54
Palace Gallery Pty Ltd v Workcover Premium Review Panel [2014] SASCFC 60
PMT Partners Pty Ltd v Australian National Parks & Wildlife Service (1995) 184 CLR 301; [1995] HCA 36
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R v Moore [2015] NSWCCA 316
Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383
Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797; [2003] HCA 54
Yager v R (1977) 139 CLR 28; [1977] HCA 10

Texts Cited:

D C Pearce and R S Geddes, Statutory Interpretation in Australia (8th ed, LexisNexis, 2014)

 

NSW Law Reform Commission, Report No 127, Protecting Privacy in NSW, (May 2010)

 

Health Records And Information Privacy Bill Second Reading Speech, New South Wales Legislative Council, Parliamentary Debates, (Hansard), 11 June 2002

  Privacy and Personal Information Protection Bill, Second Reading Speech, New South Wales Legislative Council, Parliamentary Debates, (Hansard), 17 September 1998

Category:

Principal judgment

Parties:

AQO (Applicant)
Minister for Finance and Services (Respondent)

Representation:

Counsel:
A Sathanapally (Applicant)
J Davidson (Respondent)

  Solicitors:
Harris & Harris Solicitors (Applicant)
Crown Solicitors (Respondent)

File Number(s):

2015/293291

Publication restriction:

Yes – Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) information tending to reveal AQO’s identity not to be disclosed.

 Decision under appeal 

Court or tribunal:

New South Wales Civil and Administrative Tribunal

Jurisdiction:

Appeal Panel

Citation:

[2015] NSWCATAP 162

Date of Decision:

11 August 2015

Before:

Acting Judge KP O’Connor, AM, Deputy President, AppealsEmeritus Professor GD Walker, Senior Member

File Number(s):

AP 15/00019

HEADNOTE

[This headnote is not to be read as part of the Judgment]

On 23 April 2012, the New South Wales Minister for Finance and Services (Minister) issued a media release titled “WorkCover Improvements Begin”. The release announced the publication of an issues paper and the establishment of a Parliamentary Committee for the purpose of reforming WorkCover, the State’s Workers’ Compensation Scheme. The release stated that the Scheme had a deficit of $4 billion and would fast become unviable without substantial reform. The release included two anonymised case studies which were intended to provide examples of excessive benefit outcomes.

The applicant, AQO, became aware of the media release and considered that “Case Study One” contained unique details of his worker’s compensation claim, being health and personal information that was not on the public record prior to the publication of the media release.

On 21 January 2013 AQO made a “Privacy Complaint” pursuant to s 53 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) and s 21 of the Health Records and Information Privacy Act 2002 (NSW) (HRIP Act). AQO sought, in particular, an internal review of the Minister’s alleged conduct in obtaining and using his personal information in the media release.

Part 5, s 53 of the PPIP Act enables a person aggrieved by the conduct of a “public sector agency” (a term defined in s 3 of the PPIP Act and s 4 of the HRIP Act in the same terms) to seek a review of that conduct. Pursuant to HRIP Act, s 21, Part 5 of the PPIP Act applied to contravention of a Health Privacy Principle or health privacy code of practice that applied to a “public sector agency”.

The Minister refused to conduct an internal review on the basis that he was not a “public sector agency” within the meaning of the relevant Acts.

AQO applied to the New South Wales Civil and Administrative Tribunal (Tribunal) for an administrative review of the Minister’s conduct. The Tribunal held that the Minister fell within paragraph (d) of the definition of a “public sector agency”. The Minister appealed from the Tribunal’s decision to the Appeal Panel of the New South Wales Civil and Administrative Tribunal. The Appeal Panel held that paragraph (d) did not extend to the Minister. The effect of that decision was that AQO was not entitled to any review of the Minister’s conduct.

AQO sought leave to appeal and to appeal from the Appeal Panel’s decision. The principal issues on the appeal were whether the Appeal Panel erred:

(i)   in construing the phrase “person or body” within paragraph (d) of the definition of “public sector agency” in the PPIP Act and the HRIP Act so as not to extend to a Minister;

(ii)   in having regard to later amendments to the PPIP Act, including amendments made after AQO’s internal review application, in construing the definition of “public sector agency” so as not to include a Minister; and

(iii)   in reading down the definition of “public sector agency” in the HRIP Act on the basis of statutory context and extrinsic materials relating to the definition of “public sector agency” in the PPIP Act.

Held, granting leave to appeal and allowing the appeal:

As to issue (i), per Basten JA (Ward JA agreeing)

(1)   The apparent purpose of paragraph (d) is to cover all persons or bodies who exercise public or governmental functions, a characterisation which is more precisely identified by reference to whether their accounts are audited by the Auditor-General. On that understanding of the scope of paragraph (d), the absence of express reference to Ministers, or any other office holders, is unremarkable: all would be covered by paragraph (d): [133], [135], [176]

(2)   No challenge was made to the Tribunal’s findings that an account was kept of the expenses incurred in the Minister’s office, including expenses incurred in the exercise of his functions, and that the accounts of those expenses were subject to audit by the Auditor-General. On those assumptions, it followed that a Minister fell within the scope of paragraph (d): [173], [176]

Per McColl JA (dissenting)

(1)   On the proper construction of paragraph (d), having regard to the text, context and purpose of the definition considered in the context of each Act as a whole, that definition did not extend to a Minister: [103]

As to issue (ii), per Basten JA (Ward JA agreeing)

(1)   Accepting that it is permissible to consider the effect of later amendments, careful consideration should be given to the inference properly drawn from the specific legislation: [143], [176]

(2)   While an Act as amended should be read as a single expression of legislative intendment, the fact that one provision may assume that another has a particular meaning does not convey an implied amendment of the latter provision. Such an implied amendment is neither logically nor practically necessary in order to preserve the integrity of the scheme of the Act: [165], [176]

Per McColl JA (dissenting)

(1) The Appeal Panel did not err in having regard to later amendments to the PPIP Act which made it apparent that the legislature assumed the PPIP Act did not extend to a Minister: [87] – [89].

As to issue (iii), per Basten JA (Ward JA agreeing)

(1)   Although it would be necessary to consider the justification for drawing inferences as to the construction of the 1998 PPIP Act from language used in the 2002 HRIP Act, nothing turns on that point: [131], [176]

As to issue (iii), per McColl JA (dissenting)

(1)   The interpretation of the PPIP Act was relevant to the interpretation of the HRIP Act. In the absence of any context indicating a contrary intention, it is to be presumed that Parliament intended to give the same meaning to the same words when used in a subsequent statute in a similar connection. The two Acts were in pari materia insofar as each applied to the public sector: [76]

**********

Judgment

1. McCOLL JA: The applicant, AQO, seeks leave to appeal from a decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal (NCAT) holding that the Minister for Finance and Services, at all relevant times Gregory Pearce (Minister), did not fall within the definition of “public sector agency” in the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) and the Health Records and Information Privacy Act2002 (NSW) (HRIP Act). [1]

   1. The appellant’s name has been anonymised at all stages of the proceedings in order to preserve his privacy. No order to that effect was made in relation to the proceedings in this Court. That position should be formalised by an order pursuant to s 7 and s 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) on the basis that the order is necessary to prevent prejudice to the proper administration of justice, as, absent anonymity, the whole purpose of AQO’s proceedings would be frustrated.

2. In my view, leave to appeal should be granted as the matter concerns an important question of principle concerning the construction of the two Acts. For the reasons that follow, I am of the view that the appeal should be dismissed with costs.

Factual background

3. On 23 April 2012, the Minister, then the New South Wales Minister for Finance and Services, issued a media release titled “WorkCover Improvements Begin”. The release announced the publication of an issues paper and the establishment of a Parliamentary Committee for the purposes of reforming WorkCover, the State’s Workers’ Compensation Scheme. The release stated that the Scheme had a deficit of over $4 billion and would fast become unviable without substantial reform. The release included two anonymised case studies which were intended to provide examples of excessive benefit outcomes.

4. AQO became aware of the media release and considered that “Case Study One” contained unique details of his worker’s compensation claim, being health and personal information that was not on the public record prior to the publication of the media release.

5. On 21 January 2013, AQO made a “Privacy Complaint” pursuant to s 53 of the PPIP Act and s 21 of the HRIP Act, provisions which apply, relevantly, to a “public sector agency”. He sought, in particular, an internal review of the Minister’s alleged conduct in obtaining and using his personal information for the purposes of the media release.

6. The Minister refused to conduct an internal review. He said that he was not a “public sector agency” within the meaning of the relevant Acts. Accordingly he said he was not subject to internal review.

7. On 13 May 2013 AQO applied to the New South Wales Civil and Administrative Tribunal (Tribunal) for an administrative review of the Minister’s conduct. [2] The Minister challenged the Tribunal’s jurisdiction on the basis that a Minister of the Crown did not fall within the definition of “public sector agency” in either Act.

   2. PPIP Act, s 55(1)(b). The parties referred to this as an “external review” which is a convenient expression to adopt for these purposes.

8. The Tribunal held that the Minister fell within paragraph (d) of the definition of a “public sector agency” and remitted the matter to the Minister’s office for determination of the internal review application. [3] The Tribunal reached that conclusion on the basis that accounts kept by the Minister’s office were kept “in relation to” the Minister or the Minister’s functions, and that these accounts satisfied one or more of the requirements set out in paragraph (d)(i)-(iv).

   3. AQO v Gregory Pearce MLC [2014] NSWCATAD 210 (Tribunal decision).

9. The Minister appealed from the Tribunal’s decision to the Appeal Panel, contending that the Tribunal erred in construing paragraph (d) to include a Minister. [4] The appeal was allowed. [5] The effect of that decision was that AQO was not entitled to any review of the Minister’s conduct.

   4. PPIP Act, s 56 as in force on 13 May 2013.

   5. Pearce v AQO [2015] NSWCATAP 162 (Appeal Panel decision).

10. The Minister ceased to hold ministerial office on 2 August 2013. Neither party suggests that fact renders the issue moot.

Legislative framework

11. Essentially, as I explain below, the PPIP Act and the HRIP Act require public sector agencies (and private sector persons in the case of the HRIP Act) to comply with certain information principles in relation to either “personal information” (the PPIP Act) or “health information” (the HRIP Act).

12. At the time AQO sought the internal review, the PPIP Act and HRIP Act relevantly provided as follows. [6]

    6. The Appeal Panel had regard to the versions of the legislation in force at the time of the Minister’s media release (Appeal Panel decision (at [7])). Both parties in this Court relied on the versions in force at the time AQO sought the internal review in January 2013, albeit that reference was made by the Minister to later versions of the definition of “public sector agency” for purposes of statutory construction. Neither party suggested there was any material difference between the two versions and I have been unable to discern any. I have used the versions of each Act used by the Appeal Panel.

13. Both Acts bound “the Crown in right of New South Wales and also, in so far as the legislative power of Parliament permits, the Crown in all its other capacities.”[7]

    7. PPIP Act, s 7; HRIP Act, s 12; “the Crown” in these provisions identifies “the executive … represented by the Ministry and the administrative bureaucracy which attends to its business”: NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90; [2004] HCA 48 (at [163]) per McHugh ACJ, Gummow, Callinan and Heydon JJ, citing Sue v Hill (1999) 199 CLR 462; [1999] HCA 30; (at [87]) per Gleeson CJ, Gummow and Hayne JJ.

14. The purpose and objects of the HRIP Act were, relevantly:

“3 Purpose and objects of Act

(1)   The purpose of this Act is to promote fair and responsible handling of health information by:

(a)   protecting the privacy of an individual’s health information that is held in the public and private sectors, and

…

(c)   providing an accessible framework for the resolution of complaints regarding the handling of health information.

(2)   The objects of this Act are:

(a)   to balance the public interest in protecting the privacy of health information with the public interest in the legitimate use of that information, …” [8]

8. There was no purpose or objects provision in the PPIP Act.

15. Certain definitions were common to both Acts relevantly as follows: [9]

    9. There is a minor discrepancy of no significance to this case between the two Acts’ definitions at (g), where the HRIP Act definition omits the words “of this definition” which appear in the PPIP Act.

“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 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. [10]

public sector official means any of the following:

(a)   a person appointed by the Governor, or a Minister, to a statutory    office,[11]

…”

10. PPIP Act, s 3(1); HRIP Act, s 4(1) (definition (d)). Paragraph (c) of the definition of “public sector agency” had been repealed by the time AQO sought internal review. As I have said, neither party suggested anything turned on this.

11. The concept of “public sector official” was relevant in the definition of “personal information” in PPIP Act, s 4(3) and HRIP Act, s 5(3) to extend certain exemptions relating to investigative agencies to such officials and to create an offence under PPIP Act, s 62 and HRIP Act, s 68 of corrupt disclosure and use of personal information (PPIP) or health information (HRIP) by such officials.

16. Section 15, which appeared in Part 2 (Information protection principles), Div 1 (Principles) of the PPIP Act referred expressly to a “Minister” as follows:

“15 Alteration of personal information

(1)    A public sector agency that holds personal information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the personal information:

(a)    is accurate, and

(b)    … is relevant, up to date, complete and not misleading.

…

(6)    In this section (and in any other provision of this Act in connection with the operation of this section), public sector agency includes a Minister and a Minister’s personal staff.”[12]

12. Sub-section (6) was inserted by the Privacy and Government Information Legislation Amendment Act 2010 (NSW) (2010 Amendment Act), Sch 1 [2] which relevantly commenced on 1 January 2011. There was no equivalent amendment to the analogous HPP, cl 8 (Amendment of health information).

17. The PPIP Act required public sector agencies to observe a series of “information protection principles” (IPPs) set out in Part 2, Division 1, in handling “personal information” in their possession about individuals. [13] “Personal information” was defined in s 4 of the PPIP Act as “information or an opinion … about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.”

    13. PPIP Act, s 20 – 21.

18. The IPPs dealt, among other matters, with the collection of personal information by a public sector agency, its retention by that agency, access to information held by a public sector agency by the individual to whom the information related, amendment of the personal information at the request of the individual to whom the information related and limits on a public sector agency using and disclosing personal information. [14]

    14. PPIP Act, ss 8 – 19.

19. Pursuant to PPIP Act s 28(3), nothing in ss 7, 18 or 19 prevented or restricted the disclosure of information:

“(a)   by a public sector agency to another public sector agency under the administration of the same Minister if the disclosure is for the purposes of informing that Minister about any matter within that administration, or

(b)   by a public sector agency to any public sector agency under the administration of the Premier if the disclosure is for the purposes of informing the Premier about any matter.” [15]

15. A similar exemption appears in the HPPs, cl 10(4).

20. PPIP Act, Part 3, Div 1 dealt with the making of privacy codes of practice for the purpose of protecting the privacy of individuals by regulating the collection, use and disclosure of, and the procedures for dealing with personal information held by public sector agencies. [16] A public sector agency was required to comply with any privacy code of practice applying to the agency. Contravention of such a code by a public sector agency was conduct to which PPIP Act, Part 5 applied. [17] Section 33(1) in Div 2 required each public sector agency to prepare and implement a privacy management plan within 12 months of the commencement of s 33. Such a plan was required to include provisions relating to the devising of policies and practices to ensure compliance by the agency with the requirements of the PPIP Act or the HRIP Act, if applicable. [18]

    16. PPIP Act, s 29.

    17. PPIP Act, s 32.

    18. PPIP Act, s 33(2)(a).

21. PPIP Act, Part 4 dealt with the appointment and functions of a Privacy Commissioner. Nothing in the PPIP Act or the HRIP Act authorised the Privacy Commissioner to require any person or public sector agency to disclose Cabinet information or Executive Council information. [19]

    19. PPIP Act, s 43(1).

22. The HRIP Act applied to public sector agencies and private sector persons (“organisations") that were health service providers or that collected, held or used health information. [20] Such organisations were required to observe a series of “Health Privacy Principles” (HPPs) in handling “health information” in their possession. [21] “Health information” was defined in the HRIP Act as a class of “personal information”. [22]

    20. HRIP Act, s 11.

    21. The HPPs are contained in HRIP Act, Schedule 1.

    22. See HRIP Act, ss 5 – 6.

23. Part 5 of the PPIP Act established the circumstances in which a public sector agency’s conduct in respect of privacy and personal information was subject to review. It applied to the following conduct:

“(a)   the contravention by a public sector agency of an information protection principle that applies to the agency,

(b)   the contravention by a public sector agency of a privacy code of practice that applies to the agency,

(c)   the disclosure by a public sector agency of personal information kept in a public register.” [23]

23. PPIP Act, s 52.

24. Section 53 relevantly provided:

“53 Internal review by public sector agencies

(1)   A person (the applicant) who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct.

(1A)   There is no entitlement under this section to the review of the conduct of a Minister (or a Minister’s personal staff) in respect of a contravention of section 15 (Alteration of personal information).

Note. Any such conduct can still be reviewed by the Tribunal. See section 55 (1A).

(2)   The review is to be undertaken by the public sector agency concerned.

…”

25. Section 55(1A) provided:

“A person (the applicant) who is aggrieved by the conduct of a Minister (or a Minister’s personal staff) constituting a contravention of section 15 (Alteration of personal information) may apply to the Tribunal for a review of the conduct.”

26. Sections 53(1A) and 55(1A) were inserted into the PPIP Act by the 2010 Amendment Act.

27. An aggrieved person’s entitlement to internal review under s 53 of the PPIP Act was also enlivened where a public sector agency contravened an HPP. Part 3 (Provisions for public sector agencies), s 21 of the HRIP Act provided:

“21 Complaints against public sector agencies

(1)    The following conduct by a public sector agency is conduct to which

Part 5 (Review of certain conduct) of the PPIP Act applies:

(a)    the contravention of a Health Privacy Principle that applies to the agency,

(b)    the contravention of a health privacy code of practice that applies to the agency.

(2)    For that purpose, a reference in that Part:

(a)    to personal information is taken to include health information,

and

(b)    to an information protection principle is taken to include a Health Privacy Principle, and

(c)    to a privacy code of practice is taken to include a health privacy code of practice.

…”

28. At the request of the agency concerned, the internal review could also be undertaken by the Privacy Commissioner. [24]

    24. PPIP Act, s 54(3).

29. The definition of “public sector agency” in PPIP Act, s 3 was amended by the enactment of the Members of Parliament Staff Act 2013 (NSW) [25] which inserted sub-section (a1) as follows:

“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”. [26]

25. PPIP Act, s 3(1)(a1) was inserted by Schedule 3.5[1], Members of Parliament (Staff) Act 2013 (NSW), which commenced on 24 February 2014, over a year before the Appeal Panel’s decision.

26. There was no like amendment to the definition of “public sector agency” in the HRIP Act.

30. “[P]olitical office holder” in s 3 of the Members of Parliament Staff Act means, among others, a “Minister”.

31. The Administrative Decisions Tribunal (ADT) had jurisdiction in respect of AQO’s application for external review. [27] The ADT was abolished on 1 January 2014, the day NCAT was established. [28] However, because AQO’s application for external review constituted “part heard proceedings”,[29] the person or persons constituting the Tribunal continued, on and from 1 January 2014, to hear and determine the matter, sitting as NCAT. [30]

    27. PPIP Act (Historical version for 4 January 2013 to 20 June 2013), s 3, s 55.

    28. Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 7(1); Sch 1, [3].

    29. NCAT Act, Sch 1, [6(1)].

    30. NCAT Act, Sch 1, [7(3)(a)].

Legislative history

32. In the Second Reading Speech to the Bill which became the PPIP Act, the Attorney General, the Hon Jeff Shaw, said:

“The purpose of the bill is to promote the protection of privacy and the rights of the individual by the recognition, dissemination and enforcement of data protection principles consistent with international best practice standards …

The objects of the bill are: to promote the protection of the privacy of individuals; to specify information protection principles that relate to the collection, use and disclosure of personal information held by public sector agencies; to require public sector agencies to comply with these principles; to provide for the making of privacy codes of practice for the purpose of protecting the privacy of individuals; to provide for the making of complaints about privacy-related matters, and for review of conduct that involves the contravention of the information protection principles or privacy codes of practices; and to establish an office of Privacy Commissioner and to confer on the Privacy Commissioner functions relating to privacy and the protection of personal information.

The bill … [specifies] a number of requirements relating to the confidentiality and safeguarding of personal information that is collected, held and used by public sector agencies. …

The government is itself one of the main collectors and users of personal information. I consider that effective safeguards in relation to that information are a vital part of government's compact with the community. Developments in information technology have not been matched by the development of an appropriate policy and legal framework to ensure that the right to information privacy is protected. As the leading State in communications, media and information technology, it is appropriate that New South Wales should take a lead in developing effective and comprehensive data protection legislation.

In New South Wales the need to provide for safeguards in relation to the release of personal information held by government agencies was highlighted in particular by ICAC's 1992 report entitled ‘Report into the Unauthorised Release of Government Information.’ That inquiry revealed a massive illicit trade in information involving government departments, the police, lawyers, financial institutions and private investigators. As well as drawing attention to the corrupt conduct involved in this trade, the ICAC report was very critical of the lack of any co-ordinated and consistent government policy dealing with the storage and release of information.

…

This bill is directed to the State public sector. It will constrain public sector agencies in the use of data, and it will provide enforceable rights for citizens to obtain compensation where those rights are breached, by approaching the Administrative Decisions Tribunal and seeking enforcement of those rights. This bill will achieve an effective and reasonable balance in the circumstances.” [31]

31. Privacy and Personal Information Protection Bill, Second Reading Speech, New South Wales Legislative Council, Parliamentary Debates (Hansard), 17 September 1998. As I have said, the PPIP Act contained no purpose or objects provisions. The objects (but not the purpose) to which the Attorney General referred were set out in the Explanatory Memorandum to the Bill.

33. In the Second Reading Speech to the Bill which became the HRIP Act, the Treasurer, the Hon Michael Egan, relevantly said:

“The Health Records and Information Privacy Bill is a result of the recommendations of the Ministerial Advisory Committee on Privacy and Health Information. This independent committee, chaired by the New South Wales Privacy Commissioner, Mr Chris Puplick, reviewed issues relating to the privacy of health information in the context of the development of the linked electronic health record. The committee concluded that a strong regulatory regime was essential to protect health information and address community concerns about the privacy risks associated with electronic records. As such, it recommended the introduction of a Health Records and Information Privacy Act in New South Wales.

The bill has been drafted in accordance with the recommendations of the committee, and establishes a comprehensive regime for the management and protection of health information across both the private and public sectors in New South Wales. The development of this legislation has also been guided by three additional principles. The first is to recognise obligations already imposed on service providers and health service providers by the existing laws, such as the Federal Privacy Act. The second principle is to draw together the best elements of existing privacy legislation at a local, national and international level. In this regard, particular attention has been given to the obligations currently imposed on the public sector in New South Wales under the Privacy and Personal Information Protection Act, as well as the reforms recently introduced in Victoria in the Health Records Act.

… The third principle is the aim to ensure a readily accessible and usable set of principles having due regard to both individual rights and the special needs arising in the management and use of health information. …

The bill also provides for the handling and management of complaints about breaches of the health privacy principles. Complaints about public sector agencies will be dealt with through the complaints mechanisms already established under the Privacy and Personal Information Protection Act. This legislation, which has been operational in the public sector for nearly two years, regulates the public sector's management of all personal information.” [32] [Emphasis added]

32. Health Records and Information Privacy Bill, Second Reading Speech, New South Wales Legislative Council, Parliamentary Debates (Hansard), 11 June 2002.

The Tribunal’s reasoning

34. Before the Tribunal, AQO contended the Minister fell within the definition of a “public sector agency” within the HRIP Act because the accounts of the Minister’s office related to him or his functions, the Auditor-General might audit those accounts under the Public Finance and Audit Act 1983 (NSW) and/or the Minister had power under that Act to request the Auditor-General to do so. [33]

    33. Tribunal decision (at [19])

35. The Minister submitted that the Tribunal had no jurisdiction to review any of the conduct alleged. He argued that the legislation was concerned with the conduct of public servants and that the definition of “public sector agency” did not refer expressly to a Minister, which would have been an easy matter for the legislature to achieve. [34] He also relied on extrinsic materials relating to the insertion of ss 15(6), 53(1A) and 55(1A) into the PPIP Act to confirm what he contended was the ordinary meaning of the text. [35] In addition, he relied on the NSW Law Reform Commission Report published in May 2010, Protecting Privacy in New South Wales (Privacy Report), which said:

“2.51   Finally, NSW ministers are not covered under either the Privacy Act1988 (Cth) 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 Act1988 (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.

RECOMMENDATION 2.6

The definition of ‘public sector agency’ in the Privacy and Personal Information Protection Act1998 (NSW) should be amended to include NSW Ministers.” [36]

34. Tribunal decision (at [25] – [26]).

35. Tribunal decision (at [27]).

36. The Privacy Report was tabled in the Legislative Assembly on 16 February 2011.

36. Although the recommendation was not implemented, the Minister contended the Privacy Report made it clear that in 2010 the NSW Law Reform Commission understood the Minister was not within the definition of “public sector agency”. [37]

    37. Tribunal decision (at [28] – [29]).

37. The Minister also contested AQO’s factual assertion that 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”, within paragraph (d) of the definition of “public sector agency”. [38]

    38. Tribunal decision (at [31]).

38. The Tribunal approached the construction of the legislation on the basis that both parties accepted the PPIP Act and the HRIP Act were beneficial legislation. [39]

    39. Tribunal decision (at [33]).

39. Although paragraph (d) did not expressly refer to a Minister, the Tribunal was of the view that the words of the definition were plain. It was therefore unnecessary to consider extrinsic materials. [40] Rather, the Tribunal held the difficulty was whether the facts established that the Minister was caught by paragraph (d). [41] Applying a wide construction to the expression “in relation to” in paragraph (d), and having regard to the fact that the material before the Tribunal suggested “that the connection between the Minister's functions and the accounts kept of the expenses of his Office [was] a direct one”, the Tribunal was “satisfied that those accounts are kept ‘in relation to’ the Minister's functions” and, too, that they were “accounts with respect to which the Auditor-General has powers”. [42]

    40. Tribunal decision (at [35] – [36]).

    41. Tribunal decision (at [37]).

    42. Tribunal decision (at [38] – [40]).

36. Accordingly, the Tribunal accepted AQO’s submissions that the Minister’s office was “caught by [the] paragraph (d) definition of ‘public sector agency’” and that it followed that “the Minister [was] also covered by that provision and [was] therefore a ‘public sector agency’ for the purposes of the PPIP Act and HRIP Act.” [43]

    43. Tribunal decision (at [41]).

37. The Minister appealed to the Appeal Panel pursuant to s 80(2)(b) of the NCAT Act.

Appeal Panel Decision

42. The Appeal Panel upheld the appeal. It reached its conclusion that paragraph (d) did not extend to a Minister in the following manner.

43. First, the Appeal Panel referred to principles of statutory interpretation to guide the construction exercise, including that “[t]he language which has actually been employed in the text of the legislation is the surest guide to the legislative intention”,[44] that “[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute”[45] and, too, that regard may be had to context, including “not only other provisions of the same statute but also the existing state of the law, other statutes in pari materia, and any mischief which it can be discerned, by those and other legitimate means, the provision was intended to remedy”. [46]

    44. Appeal Panel decision (at [18]), referring to Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 (at [47]) (Alcan); see also Baini v R (2012) 246 CLR 469; [2012] HCA 59 (at [14]).

    45. Appeal Panel decision (at [17]), referring to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (at [69]) (Project Blue Sky) per McHugh, Gummow, Kirby and Hayne JJ.

    46. Appeal Panel decision (at [21]), referring to Griffiths v The Trustees of the Parliamentary Contributory Superannuation Fund [2012] NSWCA 231 (at [10]) per Meagher JA (McColl and Campbell JJA agreeing).

44. The Appeal Panel accepted the Minister’s submission that it could consider the 2010 amendment reflected in s 15(6) of the PPIP Act and the 2013 amendment which extended the definition of “public sector agency” to include the staff of a Minister’s office, but did not refer to a Minister. The Appeal Panel held that “[i]t is well established that it is permissible to take account of later amendments to a principal law as an aid in seeking to construe the meaning of the law’s original provisions, where original words lack clarity as to their meaning or scope, or are ambiguous, but not where the later law simply involves an erroneous assumption as to the meaning of the prior law”. [47]

    47. Appeal Panel decision (at [26]), referring to Deputy Federal Commissioner of Taxes (SA) v Elder’s Trustee and Executor Co Ltd (1936) 57 CLR 610; [1936] HCA 64; Grain Elevators Board (Vic) v Dunmunkle Corporation (1946) 73 CLR 70 (at 86); [1946] HCA 13 per Dixon J; Allina Pty Ltd v Federal Commissioner of Taxation (1991) 28 FCR 203 (at 212); Hepples v Commissioner of Taxation (Cth) (1992) 173 CLR 492 (at 539 – 540); [1992] HCA 3; Hooker v Gilling [2007] NSWCA 99; (2007) 48 MVR 136 (at [43] – [44]) per McColl JA (Ipp and Basten JJA agreeing); Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14 (Cunneen). In fact, as AQO submitted, the 2010 amendment was not a subsequent amendment in the sense that term is understood in statutory construction as it was in force when the media release was published and, a fortiori, when the internal review was sought.

45. The Appeal Panel then turned to the construction exercise. It first held that the fact that what it described as an “essentially hierarchical” drafting technique had been used in the definition of “public sector agency” which commenced with a “Department”, then listed “types of bodies … of descending significance in the hierarchy of government” was “a strong textual indication that in the NSW laws, a ‘Minister’ was not meant to be covered by categories listed in the definition of ‘public sector agency’ that are subordinate in the list to ‘Department’.” [48] It contrasted paragraph (d) with the Privacy Act1988 (Cth), which it had earlier described as the “conceptual antecedent of State personal data protection laws”. The Privacy Act definition of “agency” “started with ‘(a) Minister’ and ‘(b) Department’, and then moved on to six other types of agency”. [49]

    48. Appeal Panel decision (at [27]).

    49. Ibid (at [15]).

46. The Appeal Panel then contrasted the “five readily-identifiable categories of administrative agency … dealt with by categories (a), (b), (c), (e), and (f)” and (g) (albeit that the latter was in a slightly different category), and bodies that fall within paragraph (d), which could only be identified if “a further investigation [was] … undertaken into the question of whether the body is subject to an audit control of the type specified.” [50]

    50. Ibid (at [28] – [29]).

47. Next, the Appeal Panel referred to what it viewed as the “well understood distinction between the role of a Minister of State and the administrative departments that are subject to the oversight or direction of the Minister”, one “reflected in the Macquarie Dictionary definition of Minister (4th ed. 2005), ‘Minister – a person appointed by (or under the authority of) the sovereign or executive head of government to some high office of state, especially to that of head of an administrative department’.” It found that “[o]n its face, the definition of ‘public sector agency’ is concerned with bodies connected with the day to day administration of government, and paragraph (d) is seeking to pick up the miscellany of committees and bodies that form part of the administration of government that do not neatly fall into the categories the subject of the other parts of the definition of ‘public sector agency’.” [51]

    51. Ibid (at [30]).

48. The Appeal Panel also took into consideration the fact that “at a number of points the Parliament has sought to delineate with some care relationships and areas of government that are subject to the operation of the Act.” It referred to PPIP Act, s 62 and HRIP Act, s 68, each of which, as I have said, impose criminal sanctions on “public sector officials” in relation to the corrupt disclosure or the corrupt use of personal and health information. It noted that the definition of “public sector official”, “covers, among others, persons ‘appointed’ to a statutory office by the Governor, or a Minister’ ((a)); ‘a person who is an officer of the Legislative Council or the Legislative Assembly or who is employed by (or who is under the control of) the President of the Legislative Council or the Speaker of the Legislative Assembly, or both’ ((e)).” [52]

    52. Ibid (at [31]).

49. In the Appeal Panel’s view, “[t]hese provisions point to an intention, at least in relation to corrupt use and disclosure sanctions, to differentiate between the roles of the Governor, a Minister, and the presiding officers of the Parliament on the one hand and, on the other hand, the role of those who are appointed by them to perform statutory functions or are employed under them.” Accordingly, “[b]y parity of reasoning with the conclusion reached by the Tribunal in this case in relation to Ministers, they would be a ‘public sector agency’ within the meaning of the PPIP and HRIP Acts if they are subject to audit controls of the kind stipulated in paragraph (d), as some or all of them would most likely be.” [53]

    53. Ibid (at [32]).

50. The Appeal Panel concluded that if paragraph (d) had the meaning the Tribunal accorded to it, an anomalous situation could arise in relation to provisions which conferred exemptions from compliance with the IPPs and the HPPs on certain agencies. [54] It illustrated this proposition by reference to the exemption from compliance given to “law enforcement agencies” and in respect of “law enforcement functions” and observed that similar examples could be given in relation to the other exempt areas. It observed that it was “quite possible” on AQO’s construction that a law enforcement agency would be exempt from review, but the Minister would not. [55]

    54. See PPIP Act, Part 2, Div 3, and the equivalent exemptions located within the text of the HPPs at HRIP Act, Sch 1.

    55. Appeal Panel decision (at [33]).

51. The Appeal Panel also found some support for a legislative intention that a Minister of the Crown was not to be caught by paragraph (d) in the reference in item (iv) to accounts “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”. In the Appeal Panel’s view, “[t]his separation of the roles of the Auditor-General and the Minister points, arguably at least, to [that] intention.” That “drafting [also tended] to support an understanding that a Minister of the Crown stands outside the sphere of the ‘persons or bodies’ covered by the provision.” [56]

    56. Ibid (at [34]).

52. The Appeal Panel considered that there was a lack of clarity as to the scope of paragraph (d) because of the lack of any “express reference to Ministers in any of the primary parts of the definition of ‘public sector agency’, despite the centrality of Ministers to the system of executive government.” [57] Accordingly, it said it was informative and appropriate to have regard to the “later” amendments. [58]

    57. Ibid (at [35]).

    58. As I have said, s 15(6) was in force at the time of the impugned conduct.

53. The Appeal Panel attributed the amendment of s 15 to insert sub-section (6) to a rationalisation exercise undertaken to eliminate an overlap between the Freedom of Information Act 1989 (NSW) (FOI Act) and the IPPs and HPPs, all of which gave rights of access and “alteration” to, in the case of the FOI Act, “personal records” and in the case of the IPPs and HPPs, “personal” and “health information”. The FOI Act applied to information held by government agencies and by Ministers. It conferred a right to apply for amendment of government agencies’ and Ministers’ records. [59] According to the Appeal Panel, the FOI provisions were “transferred” to the PPIP Act and found reflection in s 15(6). [60]

    59. FOI Act, s 39, s 48. The FOI Act was repealed by the Government Information (Public Access) (Consequential Amendments and Repeal) Act 2009 (NSW) on 1 July 2010. The same Act also transferred parts of the FOI Act to the PPIP Act (with amendments), and amended parts of the HRIP Act (see Schedules 1 and 2).

    60. Appeal Panel decision (at [36] – [37]). This explanation is consistent with the Second Reading Speech to the Bill which became the 2010 Amendment Act: New South Wales Legislative Council, Parliamentary Debates, (Hansard), 21 September 2010.

54. The Appeal Panel concluded that “[t]his amendment clearly points to a legislative understanding that the PPIP Act’s definition in its original form, and, similarly the HRIP Act’s definition, of ‘public sector agency’ did not cover Ministers. The related amendments that except Ministers from the usual obligation to undertake an internal review, and allow for requests for amendment to go straight to the Tribunal for review reflect a similar understanding, see PPIP Act s 53(1A) and s 55(1A).” [61]

    61. Ibid (at [38]).

55. Next, the Appeal Panel referred to the 2013 amendment which added sub-paragraph (a1) to the definition of “public sector agency” in the PPIP Act, an amendment which was not also made to the HRIP Act. [62] The Appeal Panel sourced this amendment to a partial adoption of the recommendations in the Privacy Report. [63]

    62. Ibid (at [39]) and see [29] above.

    63. The Second Reading Speech to the Members of Parliament Staff Bill does not cast any light on the source of this amendment. However, as the Appeal Panel said, it partly reflected Privacy Report, Recommendation 2.4; see also para [2.36]. The absence of a like amendment to the HRIP Act may be explained by the fact that the Privacy Report recommended that that Act be repealed and health information, as dealt with by public sector agencies, be regulated under the PPIP Act, anticipating that, in due course, federal privacy legislation would cover the field with respect to the private sector: Privacy Report Recommendation 1.1; see also [0.2], [1.11], [1.13] – [1.16].

56. The Appeal Panel held that the fact there was no equivalent to s 15(6) in the HRIP Act did “not alter the cognate character of the two laws, the operation of which is expressly connected by s 21 of the HRIP Act.” [64]

    64. Appeal Panel decision (at [41]).

57. The Appeal Panel concluded:

“[42]   The general words used in paragraph (d) are, we consider, constrained by their context. Paragraph (d) should be read so as not to include within its scope a Minister. The provision is concerned only with ‘persons or bodies’ that have functions within the ordinary administration of government, and belong to a portfolio administered by a Minister.”

58. In the light of this conclusion, the Appeal Panel found it unnecessary to deal with the Minister’s submissions concerning the construction of particular parts of the text of paragraph (d). [65]

    65. Ibid (at [43]).

Issues on appeal

59. AQO relies on three grounds of appeal:

1. The Appeal Panel erred in law by construing the phrase “person or body” within paragraph (d) of the definition of “public sector agency” in the PPIP Act and HRIP Act so as not to extend to a Minister.

2. The Appeal Panel erred in having regard to later amendments to the PPIP Act, including amendments made after AQO’s internal review application, in construing the definition of “public sector agency” so as not to include a Minister.

3. The Appeal Panel erred in reading down the definition of “public sector agency” in the HRIP Act on the basis of statutory context and extrinsic materials relating to the definition of “public sector agency” in the PPIP Act.

AQO’s submissions

60. AQO first submitted that the Appeal Panel committed an error of law by reading down the phrase “person or body” in the chapeau to paragraph (d) so as not to include a Minister. He contended that five factors supported the conclusion that the Minister fell within that expression: the text of the legislation, the consequences of the literal meaning the Appeal Panel adopted, the purpose of the PPIP and HRIP Acts, the fact that the PPIP and HRIP Acts are beneficial legislation which should be liberally interpreted and the fact that the effect of the Appeal Panel’s decision was contrary to the principle that statutory rights (referring to PPIP, s 53 and s 55 and HRIP, s 21) can only be displaced by clear words to that effect. He argued that those factors in favour of the Minister’s inclusion outweighed those to the contrary.

61. Secondly, AQO submitted that the Appeal Panel erred in considering amendments made to the PPIP Act and the HRIP Act in 2013 subsequent to the Minister’s conduct, to AQO’s internal review application and to the initiation of external review proceedings as part of the statutory context informing the construction of the paragraph (d) definition for the purpose of these proceedings.

62. Thirdly, AQO submitted that the Appeal Panel gave little direct attention to the HRIP Act in its reasons, even though the information contained in the case study in the media release about which he complained predominantly revealed his “health information”. He pointed out that, with only one exception, the contextual and extrinsic aids on which the Appeal Panel relied related to the PPIP Act. He contended that this constituted a further error of law, as even if a phrase under consideration is defined in two Acts in pari materia, the definition in one Act cannot be used to define or extend the meaning in the other Act. [66] AQO submitted that the Appeal Panel’s use of amendments to the PPIP Act to construe the HRIP Act was no longer open once the two Acts were no longer in pari materia.

    66. Referring to Yager v R (1977) 139 CLR 28 (at 43); [1977] HCA 10.

Minister’s submissions

63. The Minister submitted that the Appeal Panel did not err in construing paragraph (d) to exclude the Minister, as the text, structure and context of the PPIP and HRIP Acts supported its construction.

64. The Minister first submitted that the context in which paragraph (d) was found suggested that Parliament took care expressly to extend the respective Acts to apply to Ministers where it intended to so do. The Minister also argued that the context implied that paragraph (d) was not intended to “catch” Ministers by way of an analysis of Ministers’ accounts kept in relation to the expenses of others (in this case, the Minister’s office).

65. Secondly, the Minister submitted that in contrast to the reference in paragraph (d)(iv) to a “Minister of the Crown”, the “primary parts” of the definition did not contain any express reference to a Minister. He argued the Appeal Panel was correct in stating that this drafting tended to support an understanding that a Minister of the Crown stood outside the sphere of persons or bodies covered by the provision.

66. Thirdly, the Minister submitted that the structure of the definition of “public sector agency” provided a textual indication that a Minister was not intended to be covered by paragraphs of the definition that were subordinate to the category in paragraph (a), namely a government department or the Teaching Service. In addition, the Minister argued that the various paragraphs of the definition referred generally to bodies rather than persons. He contended that this suggested that for most purposes an individual would not constitute a “public sector agency”. He pointed out that a separate definition of “public sector official”, which clearly referred to individuals, is included in both the PPIP Act and the HRIP Act.

67. Fourthly, the Minister submitted that the Appeal Panel was correct in concluding that the remainder of the PPIP and HRIP Acts indicated that Parliament sought to delineate with some care relationships and areas of government that were subject to their operation. [67]

    67. Appeal Panel decision (at [31]).

68. Fifthly, the Minister submitted that the insertion of s 15(6) into the PPIP Act in 2010 which expressly extended s 15 to a Minister and the Minister’s personal staff for the limited purposes of amendment of personal information was the only textual indication that the Minister was intended to be bound by the PPIP Act. He contested AQO’s contention that because s 15(6) was inserted into the PPIP Act in 2010, the Appeal Panel should not have had regard to it, on the basis that to do so would perpetuate an erroneous assumption as to the meaning of earlier provisions. Rather, the Minister contended that the Appeal Panel’s approach was consistent with the principle that an amending Act can be taken into account in the interpretation of the prior legislation, to avoid a result that would render the amendment unnecessary or futile. [68]

    68. Hooker v Gilling (at [43] – [44]) per McColl JA, Ipp and Basten JJA agreeing.

69. In like vein, the Minister submitted that the Appeal Panel did not err in referring to amendments made to the PPIP Act and the HRIP Act in 2013 which commenced in February 2014, more than nine months before the Appeal Panel’s decision, as its task was to consider “the conduct afresh based on the evidence and material before it at the time of the hearing.”[69]

    69. KT v Sydney Local Health Network [2011] NSWADT 171 (at [64]).

70. Sixthly, the Minister submitted the Appeal Panel correctly placed weight on the fact that the legislature had not adopted either in the 2010 amendment or subsequently, the NSW Law Reform Commission’s recommendation that Ministers be included within the definition of “public sector agency”. [70]

    70. Privacy Report (Recommendation 2.6 and [2.51]).

71. Seventhly, the Minister submitted that the Appeal Panel correctly recognised the cognate character of the PPIP Act and the HRIP Act. He argued that those Acts were relevantly in pari materia in respect of paragraph (d), such that consideration of each would form part of the context of the other and the same construction ought to be accorded to both.

63. Eighthly, in oral submissions, the Minister submitted that he was not a person “in relation to whom, or to whose functions, an account is kept of administration or working expenses” within the chapeau to paragraph (d). However, he did not seek to challenge the Tribunal’s factual finding that the accounts kept of the expenses of his office were “kept ‘in relation to’” his functions. [71]

    71. Tribunal decision (at [39]).

Consideration

73. The task of statutory interpretation is concerned with giving a statutory provision the meaning that the legislature is taken to have intended it to have. [72] The exercise must begin with a consideration of the text. [73] In Project Blue Sky the plurality explained the exercise as follows:

“[69]   The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

[70]   A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.” [74] [Footnotes omitted]

72. Project Blue Sky (at [78]) per McHugh, Gummow, Kirby and Hayne JJ.

73. Alcan (at [47]) per Hayne, Heydon, Crennan and Kiefel JJ; see also French CJ (at [4]).

74. Applied by French CJ, Hayne, Kiefel and Nettle JJ in Cunneen; see also the cases referred to in Cunneen (at footnote 67).

74. The court is also required to undertake the exercise of statutory construction with a view to promoting the purpose or object underlying the PPIP Act and the HRIP Act rather than construing the Acts in a manner which would not promote that purpose or object. [75]

    75. Interpretation Act 1987 (NSW), s 33.

75. In Cunneen, the majority referred with approval to Mason J’s reasons in K&S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd, where his Honour emphasised that “[t]he modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise.”[76] “Context” is used “in its widest sense to include such things as the existing state of the law and the mischief which … one may discern the statute was intended to remedy.”[77] Expressions of indefinite connotation are especially susceptible to context and may mean one thing in one legislative context and something quite different in another, such that to ignore context is calculated to lead to error. [78] This passage in Cunneen is apt when considering the interpretation of general words such as “person” in paragraph (d).

    76. Cunneen (at [57]) referring to [1985] HCA 48; (1985) 157 CLR 309 (at 315) per Mason J (as his Honour then was).

    77. CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 (at 408); [1997] HCA 2; per Brennan CJ, Dawson, Toohey and Gummow JJ.

    78. Cunneen (at [59]).

76. The interpretation of the PPIP Act may be relevant to the interpretation of the HRIP Act. In the absence of any context indicating a contrary intention, it is to be presumed that Parliament intended to give the same meaning to the same words when used in a subsequent statute in a similar connection. [79] The two Acts are in pari materia insofar as each applies to the public sector. The HRIP Act was clearly modelled on the PPIP Act. As much is apparent on its face as well as from the Second Reading Speech to the HRIP Act. [80] The two Acts are expressly linked by the fact that complaints about public sector agencies arising under the HRIP Act are dealt with under Part 5 of the PPIP Act. The Second Reading Speech to each Act made it apparent that the mischief their provisions were intended to address was the misuse of information by the government agencies which collected and held it and the establishment of a scheme to deal with the complaints of individuals about such misuse.

    79. Lennon v Gibson & Howes Ltd (1919) 26 CLR 285 (at 287) (Privy Council).

    80. See the first passage emphasised in the Second Reading Speech to the HRIP Bill: [33] above.

77. It is next necessary to bear in mind that the statutory provision in issue in this case is a definition. The function of a definition is not to enact substantive law, but to provide aid in construing the statute. Statutory definitions should be construed according to their natural and ordinary meaning, without reading in limitations and qualifications unless clearly required by the terms of the definition or its context, for example if it is necessary to give effect to the evident purpose of the Act. [81] It is also necessary to address the language used bearing in mind the functions which the defined terms serve in the operative provisions. [82]

    81. PMT Partners Pty Ltd v Australian National Parks & Wildlife Service (1995) 184 CLR 301 (at 310); [1995] HCA 36 per Brennan CJ, Gaudron and McHugh JJ.

    82. AGU v Commonwealth of Australia (No 2) [2013] NSWCA 473; (2013) 86 NSWLR 348 (AGU) (at [19]) per Basten JA (Bathurst CJ, Beazley P, Leeming JA and Sackville AJA agreeing).

78. Reading in limitations and qualifications not clearly required by the terms of the definition or its context may defeat the intention of the legislature. However, once it is clear that the definition applies, the only proper course is to read the words of the definition into the substantive enactment and then construe the substantive enactment, whether in its extended or confined sense, in context and bearing in mind its purpose and the mischief that it was designed to overcome. [83]

    83. Kelly v R (2004) 218 CLR 216; [2004] HCA 12 (at [103]); per McHugh J; see also Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568; [2005] HCA 26 (at [12]) per McHugh J.

79. It is impermissibly circular to construe the words of a definition by reference to the term defined,[84] or to assume the purpose of the Act and then reasoning, as if syllogistically, conclude that a meaning of a definition more consonant with the assumed purpose of the Act should be preferred. [85] In cases where the purpose of legislation cannot be identified, it may be that the “best that can be done is to reason in terms of relative consistency … in accordance with the principles of statutory interpretation adumbrated in Project Blue Sky – to determine which of the two competing constructions of [the definition] is more harmonious overall.” [86]

    84. The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404 (at 419); [1994] HCA 54 (Shin Kobe Maru) per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.

    85. Cunneen (at [33]).

    86. Ibid (at [35]).

80. Finally, in terms of general principle, a subsequent amendment may inform the construction of the original words of a statute to the extent, at least, that the original provision should not be given a meaning which renders the amendment unnecessary, futile or mere surplusage. [87] However, “[a]mending legislation cannot be used as an aid to interpretation in respect of a provision which is unambiguous and care must also be taken to ensure that words in a later statute have not been inserted to remove possible doubt”. [88]

    87. See the cases referred to in the Appeal Panel decision (at [26]); see also Palace Gallery Pty Ltd v Workcover Premium Review Panel [2014] SASCFC 60 (at [27]) per Kourakis CJ (Bampton J agreeing); R v Moore [2015] NSWCCA 316 (at [98]) per Bathurst CJ.

    88. R v Moore (at [99]).

81. Turning to paragraph (d), no one disputes that a Minister is a “person” and thus, prima facie, within that definition if the other conditions of that provision are satisfied. The Minister does not challenge the factual finding made by the Tribunal that other conditions were satisfied. [89] However, he submits that that does not answer the question whether he was a “person” within the meaning of that general expression in a definition which catches a “public sector agency”. [90]

    89. Tribunal decision (at [38] – [40]).

    90. Cf Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334; [1999] HCA 9 (at [20]) per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.

82. Like the Appeal Panel, I consider it is necessary to approach the task of construction by first having regard to basic propositions concerning the state polity. Ministers sit at the apex of government. The State Executive Council advises the Governor in the government of the State. Ministers of the Crown for the State of New South Wales are appointed by the Governor from among the members of the Executive Council. [91]

    91. Constitution Act 1902 (NSW), s 35B and s 35E.

83. Legislation makes frequent reference to Ministers. Hence, the Interpretation Act 1987 (NSW) makes it clear that “[i]n any Act or instrument … a reference to a Minister is a reference to a Minister of the Crown.”[92] Equally, legislation makes frequent references to “person(s)”. “Person” is defined in s 21 of the Interpretation Act (Meanings of commonly used words and expressions) to include “an individual, a corporation and a body corporate or politic”. AQO did not rely on the Interpretation Act definition of “person” in support of the interpretation of paragraph (d) for which he contended.

    92. Interpretation Act 1987 (NSW), s 15(1)(a).

84. However, “[g]eneral words in an Act of Parliament must always be construed in accordance with the circumstances to which the Act is intended to apply”. [93] Further, even though a definition section “does not expressly state that its application is ‘unless the context otherwise requires’, [it] will not be given effect so as to defeat a meaning required by the context of a particular provision.”[94]

    93. Hall v Jones (1942) 42 SR (NSW) 203 (at 208) per Jordan CJ (HaIse Rogers and Street JJ agreeing).

    94. Betella v O’Leary [2001] WASCA 266 (at [13]) per Burchett AUJ (Wallwork and Wheeler JJ agreeing).

85. I have earlier referred to PPIP Act, s 7 and HRIP Act, s 12 providing that both Acts bound the Crown in right of New South Wales. [95] Such provisions are intended to rebut the general presumption of statutory interpretation that no statute binds the Crown unless the Crown is expressly named therein or unless there is a necessary implication that it was intended to be bound. [96] Neither party referred to either of these provisions, perhaps because in each case where such a provision appears, its effect will turn upon the statutory context. [97]

    95. See [13] above.

    96. Bradken Consolidated Ltd v BHP Co Ltd (1979) 145 CLR 107 (at 116); [1979] HCA 15; AGU (at [25]), referring to Bropho v State of Western Australia (1990) 171 CLR 1 (at 14 – 15); [1990] HCA 24.

    97. AGU (at [27]).

86. There is, of course, no reference to a Minister in paragraph (d), save in sub-paragraph (iv) in which context, as the Minister submitted, it is used in contradistinction to the proposition that a Minister is otherwise caught by the definition. With the exception of the references to “person” in paragraphs (d) and (g), all the other entities referred to in the definition of “public sector agency” are “juristic persons [and] … entities which the law would not recognise as persons”. [98]

    98. AGU (at [17]).

87. However, s 15(6) did refer to a Minister. It made it plain that in that context and other related provisions, [99] the definition of “public sector agency” did include “a Minister and a Minister’s personal staff”. Inherent in that amendment was the assumption that absent s 15(6), paragraph (d) in the PPIP Act was not otherwise intended to extend to a Minister. Section 15(6) would have been otiose if the class of persons to whom it refers were already subject to the PPIP Act by virtue of paragraph (d). [100]

    99. They being s 53(1A) and s 55(1A).

    100. The court can have regard to s 15(6), even though it was an amendment as it was in force at the time of the impugned conduct and, in any event, pursuant to the proposition that “it is the intention of the legislature when effecting textual amendment of an Act to produce a revised text which thereafter and as to subsequent events is to be construed as a whole”: see Commissioner of Stamps (South Australia) v Telegraph Investment Company Pty Limited (1995) 184 CLR 453; [1995] HCA 44 (at 463) per Brennan CJ, Dawson and Toohey JJ; (at 479) per McHugh J and Gummow J.

88. Although it is not conclusive, in my view, regard may also be had to the 2013 amendment which inserted sub-paragraph (a1) into the definition of “public sector agency” in the PPIP Act. Although it might be accepted that taking an amendment into account in determining the scope of prior legislation is a curious way of revealing parliamentary intention at the time of passing the earlier provision,[101] where, in the context of remedial legislation, the legislature evinces an intention to expand the ambit of the Act, that is a relevant indication, in my view, of the provision’s otherwise intended narrower operation. In this context the 2013 amendment indicates both a legislative assumption that the PPIP Act did not hitherto extend to the office referred to in the sub-paragraph (a1) amendment and, of course, the improbability that the legislature otherwise intended the definition to extend to a Minister.

    101. Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348 (at 382); [1992] FCA 624 per Gummow J.

89. It is also relevant, in my view, to recognise that the 2013 amendment was made after the legislature received the Privacy Report stating that the PPIP Act did not apply to a Minister and recommending that it be amended to so apply, yet it chose not to take that course. That inaction is relevant to the legislative history and “tells in favour of not departing from” the meaning the Privacy Report had communicated to the legislature. [102]

    102. Cunneen (at [113]) per Gageler J; referring to the unanimous decision in Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher (2015) 254 CLR 489; [2015] HCA 10 (at [15] – [16]).

90. Further, in the PPIP Act, s 28(3) drew an express distinction between a “public sector agency” and the Minister who administered it or the Premier. [103] A similar distinction was drawn in the HRIP Act, s 35(4) which referred to “a public sector agency or any Minister”. The latter phrase would be otiose if a Minister was caught by the definition. Indeed, as was pointed out during submissions, on AQO’s suggested construction of paragraph (d), s 28(3) would have the absurd consequence that it referred to a Minister under the administration of the Minister. [104]

    103. I draw attention to the reference to the Premier because AQO accepted that, on his suggested construction, paragraph (d) extended to the Premier.

    104. Other illustrations of the legislature’s intention to delineate relationships and areas of government that are subject to the operation of each Act can be seen in the Appeal Panel’s reasons (at [31] – [33]).

91. AQO submitted that as “Commonwealth agency” was defined in both Acts to mean “an entity referred to in paragraph (a) – (h) of the definition of agency in the Privacy Act 1988 of the Commonwealth”, [105] the fact the latter definition included a Minister demonstrated it was not unreasonable for a person holding such responsibilities to have to comply with privacy principles. A Minister’s role in the Commonwealth Act was not explored, but it might be noted that the reference to a Commonwealth agency in each Act is for the limited purpose of being a recipient of information. [106] In AGU, the Court held that the HRIP Act does not bind the Crown in right of the Commonwealth. By parity of reasoning, the same conclusion would apply to the PPIP Act.

    105. PPIP Act, s 3, HRIP Act, s 4.

    106. PPIP Act, s 19(2); HRIP Act, Sch 1 [14].

92. The Appeal Panel held that the definition of “public sector agency” was concerned with bodies connected with the day to day administration of government. In my view that conclusion was not an exercise of impermissible circular reasoning as AQO submitted. [107] Rather, that conclusion was consistent with the nature of the activities such agencies are required to undertake in terms of the “personal information” or “health information” which comes into their possession in carrying out such administration. [108] I have referred to those provisions earlier, but, in brief, they include IPPs or HPPs governing how to collect, retain, give access to and use or disclose such information, the making of, and compliance with, codes of practice in relation such information and preparation and compliance with privacy management plans.

    107. Cf Shin Kobe Maru (at 419).

    108. Cf Cunneen (at [35]).

93. In the ordinary course it would not, in my view, be envisaged that a Minister would personally hold information of the nature referred to in either Act, or be required personally to devise such codes or plans to apply uniquely to his or her conduct. Yet that is the logical extension of AQO’s contentions.

94. A conclusion that the PPIP Act was intended to refer to government departments, rather than the Ministers to whom they reported, is supported by the Second Reading Speech to the PPIP Act. The same conclusion flows independently from a consideration of the HRIP Act.

95. It is also relevant to recognise that the definitions of “public sector agency” in the PPIP and HRIP Acts are not unique to that legislation. At the time the PPIP and HRIP Acts were enacted, s 3 of the Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act) and s 5 of the Ombudsman Act 1974 (NSW) each contained an hierarchical definition of “public authority” conceptually similar to that found in the PPIP and HRIP Acts, including a definition of “public authority” relevantly identical to the definition of “public sector agency”. [109] Similarly, s 4 of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) contains an hierarchical definition of “agency” referring first to a “public service agency”,[110] but on this occasion, secondly, to “a Minister (including a person employed by a Minister under Part 2 of the Members of Parliament Staff Act 2013.”

    109. Sub-paragraph (d) in the ICAC Act and (e) of the Ombudsman Act. Section 5 of the Ombudsman Act was also amended on the enactment of the Members of Parliament Staff Act 2013 to insert into the definition of “public authority”, the phrase “(d1) any person employed by a political office holder under Part 2 of the Members of Parliament Staff Act 2013”.

    110. A term defined in Schedule 4 by reference to the meaning of that term under the Government Sector Employment Act 2013 (NSW).

96. The ICAC Act also defined “public official” in an hierarchical manner to mean “an individual having public official functions or acting in a public official capacity”, including:

151. (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ, Gaudron J separately agreeing).

152. The equivalent provision in State legislation is to be found in the Interpretation Act 1987 (NSW), s 34.

149. Two qualifications should be noted as to the proper reliance on extrinsic material, such as law reform reports. First, as the joint reasons in CIC Insurance made clear, they are to be relied upon to identify the mischief which the legislature sought to remedy, not the existing state of the law. Secondly, use of such material must have regard to the constraints imposed by s 34(3) of the Interpretation Act 1987 (NSW), requiring the Court to have regard to the desirability of persons (in the community) being able to rely on the ordinary meaning conveyed by the text and the need to avoid prolonging legal proceedings without compensating advantage.

150. If such material can assist in identifying the mischief (and possibly more broadly the purpose) of an amendment, there is some doubt as to how it can properly be relied upon in circumstances where the legislature has not adopted a recommendation proposing an amendment. In Chippendale Printing Co Pty Ltd v Commissioner of Taxation [153] the Full Court of the Federal Court dealt with a question as to whether a limited right of refund for an overpayment of tax under the relevant legislation could be supplemented by an unqualified common law right to repayment. Reliance was placed by the taxpayer (in favour of a broader right of recovery) on a bill which was not passed. Tamberlin J stated: [154]

“It is submitted that this provision would have been unnecessary if Parliament considered that there was no common law right. There are two answers to this. First, a Bill which has not been passed can be of no assistance in determining the construction of an Act of Parliament. Secondly, such a provision is equally consistent with an intention to declare and clarify pre-existing law and not to change it.”

Lehane J stated, to similar effect: [155]

“But if the Bill had been enacted, it would, I think, have given little assistance: the mere removal of doubt should not be regarded as either unnecessary or futile. In any event, I do not think that a Bill which was not enacted, nor its Explanatory Memorandum, or debate relating to it, assists us in construing [the Act].”

153. (1996) 62 FCR 347 (Sheppard, Tamberlin and Lehane JJ).

154.    Chippendale at 360-361.

155.    Chippendale at 369F-G.

151. Finally, it is appropriate to note the carefully phrased reference in the reasons of Gageler J in Cunneen to Fortress Credit, by way of comparison rather than as authority for the proposition he was stating. The passage in question related to the principle that the re-enactment of a provision after judicial consideration may be regarded as endorsement of the judicial interpretation. [156] No issue of earlier judicial interpretation arose in the present case. Nothing is to be gained by reliance on a statement of the law in the Law Reform Commission Report which post-dated the enactment of the Privacy Protection Act by more than a decade and made a recommendation which was not acted upon.

     156. Fortress Credit at [15].

152. The reliance on amending legislation passed in 2009 cannot be disposed of so readily. That is not because such reliance has greater merit, but because it requires both historical explanation and legal analysis to understand its relevance.

153. Section 15 of the Privacy Protection Act requires that a public sector agency that holds personal information must, when requested by the individual to whom the information relates, make appropriate amendments to ensure that it is accurate and not misleading. The critical provision, for the Minister’s argument, was s 15(6) which provides:

15   Alteration of personal information

…

(6)   In this section (and in any other provision of this Act in connection with the operation of this section), public sector agency includes a Minister and a Minister’s personal staff.

154. There was then a simultaneous amendment to s 53 (dealing with internal review by public sector agencies) stating that there was no entitlement to such review of the conduct of a Minister in respect of a contravention of s 15. That amendment, it was submitted, was necessary to avoid the absurdity of the Minister reviewing his or her own conduct. Rather, an aggrieved applicant was required to complain directly to NCAT, pursuant to s 55(1A). The Minister’s principal argument was that, if the general definition of public sector agency included a Minister, there would have been no need for s 15(6). It may therefore be inferred that, in the view of the Parliament, the general definition was more restricted.

155. Before dealing with the general background to these provisions, it is convenient to address the submission that it would be absurd if the Minister were required to review his or her own conduct. That submission was not predicated on the amendment included in s 53(1A): rather, the absence of any provision in the Act as originally enacted in similar terms to s 53(1A) was said to demonstrate the implausibility of the contention that Ministers fell within the definition of public sector agency. However, it is only absurd if it is to be assumed that such a review would be futile in all events. First, that hardly does justice to the capacity of a Minister of the Crown to reconsider the propriety of his or her conduct in circumstances where it is plausible that a possible breach of the Privacy Protection Act had not previously been identified either by the Minister or his or her advisors. Secondly, the legislature may simply not have adverted to the possibility of the need for internal review of a ministerial decision. Thirdly, the Act does no more than provide a right of internal review by the agency responsible for the conduct: it does not say how or by whom the review will be conducted.

156. In order to understand the significance of new s 15(6), it is necessary to refer to the circumstances of its introduction. On 1 July 2010 the Government Information (Public Access) Act 2009 (NSW) (“the Government Information Act”) replaced the Freedom of Information Act 1989 (NSW). [157] Provisions from the Freedom of Information Act dealing with amendment of records were then included in the Privacy Protection Act, as a new Pt 6A. At that stage, a right of review was given under the Government Information Act. [158] Further, Pt 6A did not use the language of “public sector agency”, but rather the term “agency”. The definition of “agency”, adopted from the Government Information Act, s 4(1), included at par (b) “a Minister (including a Minister’s personal staff)”. Otherwise, the definition of “agency” adopted a structure and concepts not found in the definition of public sector agency in the Privacy Protection Act.

     157.    See Government Information (Public Access) (Consequential Amendments and Repeal) Act 2009 (NSW), s 3.

     158. Privacy Protection Act, s 59J.

157. The final stage in the legislative history was the removal of Pt 6A from the Privacy Protection Act and the insertion of the new provisions, including s 15(6). [159]

     159. See Privacy and Government Information Legislation Amendment Act 2010 (NSW), Sch 1[2] and [10].

158. Having regard to this history, what is to be made of the amendment affected by s 15(6)? The Minister submitted that, as explained in the joint reasons of Brennan CJ, Dawson and Toohey JJ in Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd:[160]

“The result is that both the Act which is amended and the amending Act are to be read together as a combined statement of the will of the legislature. Thus the effect of the amending Act may be to alter the meaning which remaining provisions of the amended Act bore before the amendment.”

160. (1995) 184 CLR 453 at 463.

159. To similar effect, McHugh and Gummow JJ stated that “under modern practice it is the intention of the legislature when effecting textual amendment of an Act to produce a revised text which thereafter and as to subsequent events is to be construed as a whole.” [161]

     161.    Commissioner of Stamps at 479.

160. So much may be accepted; however, as Commissioner of Stamps itself indicated, the result may not require significant rewriting of the amended Act. In that case, prior to the relevant amendment, a person seeking an opinion as to the duty payable on an executed instrument could require the Commissioner to state his or her opinion. That provision was amended to permit the Commissioner to state an opinion, whether requested to or not. Prior to the amendment, a procedural provision allowed for an appeal by a dissatisfied party by way of case stated, setting forth the question upon which the Commissioner’s opinion had been required and the assessment made by the Commissioner. Whereas that had previously applied to all opinions (because a request was a precondition to the exercise of the power), after the amendment (removing the precondition) it no longer did. Accordingly, where the opinion sought to be challenged had not been the subject of a request, the appeal by way of stated case was unavailable. Two aspects of this case are significant. First, the Court did not construe the procedural provision as having a changed meaning as a result of the amendment to the assessment provision; it merely noted that the procedural provision was not available in all cases, as it had been before. Secondly, and as noted by McHugh and Gummow JJ, “matters of procedure already stand in a special position[162] and rights accrued under repealed legislation are protected by the common law”. [163] The issue as to the varied effect of the procedure arose inevitably because the two provisions were interconnected.

     162. Referring to Maxwell v Murphy (1957) 96 CLR 261.

     163.    Commissioner of Stamps at 479.

161. The applicant did not accept that the principle articulated in Commissioner of Stamps had any relevant application to the present circumstances. Rather, counsel submitted that the present case fell within the principle articulated by Gleeson CJ in Carr v Western Australia. [164] Under the Criminal Code (WA), s 570D, evidence of an admission by an accused person was inadmissible unless the evidence was videotaped or the prosecution established a reasonable excuse for not recording the admission. One reasonable excuse was that the accused did not consent to the interview being taped. Gleeson CJ noted that in an earlier case, Nicholls v The Queen,[165] he had himself expressed the view that a provision stating that lack of consent was a reasonable excuse for not videotaping assumed that consent was a necessary condition for the videotaping. From that, the accused sought to argue that, he not having consented to the videotaping, the videotape, and hence the admission, was inadmissible. There was, however, no assumption in the Act to that effect; rather, it needed to be implied that the provision excluding an admission in the absence of a video recording (which should only have been undertaken with consent) should be expanded to exclude a video recording which had been undertaken, but without consent. The argument failed.

     164. (2007) 232 CLR 138; [2007] HCA 47.

     165. (2005) 219 CLR 196; [2005] HCA 1 at [9].

162. It may be accepted that there appears to be an assumption underlying the drafting of s 15(6) that Ministers were not included within the definition of “public sector agency”. However the applicant submitted that the remarks of Gleeson CJ in Carr were then apposite:[166]

“The assumption might be explained in a number of ways. It might reflect a view of the law…. It might be the result of an oversight. It may be that the framers of [the chapter of the Code which regulated videotaping and related matters] did not advert to circumstances of the kind that arose in the present case. That would not be surprising. Whatever be the true explanation, it is beside the point unless, by some legitimate process of construction, s 570D could be given the meaning that, in addition to the rule of exclusion stated in s 570D(2), a videotape was to be excluded if the interviewee did not consent to the making of the videotape.”

166. Carr at [16].

163. Translating those propositions to the present case, the assumption may have been based upon a view of the scope of the definition of public sector agency which, on close examination, may be thought to be flawed. Alternatively, because the newly introduced provisions had, throughout their legislative life, applied with respect to Ministers, it was important that they continue to do so. Accordingly, that consequence should be made explicit, in circumstances where the precise scope of the phrase “public sector agency” was unclear but was not intended to be varied.

164. As in Carr, it is not known which view was taken, nor would a mistaken view as to the law necessarily be determinative. That is because, in their own terms, the provisions do not overlap: s 15 contains a definition exclusively for its own purposes. One cannot imply an intention to alter the effect of the existing definition of public sector agency from an assumption, combined with a clear intention not to vary the existing definition.

165. Accordingly, while the Act as amended should be read as a single expression of legislative intendment, the fact that one provision may assume that another has a particular meaning does not convey an implied amendment of the latter provision. Such an implied amendment is neither logically nor practically necessary in order to preserve the integrity of the scheme of the Act. [167] That conclusion reflects the inherent difference between an unstated assumption and an implied limitation on a definitional provision.

     167. See the passage in Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 135, in the judgment of Mason CJ, quoted by Gleeson CJ in Carr at [12].

Reasoning from anomalies

166. Consideration of the issues relied upon by the Minister in this Court is sufficient to dispose of the major arguments relied upon by the Appeal Panel in reaching its conclusion. However, there was one further argument which requires to be addressed. The Appeal Panel considered that, were public sector agency to include Ministers, anomalies might arise. That specifically relied upon was an exemption given with respect to “law enforcement agencies” in respect of “law enforcement functions”. The Appeal Panel stated:[168]

“It is quite possible that a Minister might be active in making a law enforcement communication. The definition of ‘law enforcement agency’ does not include a Minister. If category (d) has the meaning accorded to it by the Tribunal, the anomalous situation would ensue that a law enforcement communication by a Minister would be contestable, when the same communication by a ‘law enforcement agency’ within that Minister’s portfolio would not be contestable.”

168. Pearce v AQO at [33].

167. There are several problems with this proposition. The first is specific to the example given by the Appeal Panel. There is no exemption for “law enforcement communications”; presumably the reference is intended to be to the exemption from specific prohibitions contained in different sections of the Act, as itemised in s 23. Each subsection of s 23 bar one, however, provides an exemption with respect to a “public sector agency”, whether or not it also constitutes a law enforcement agency. Only subs (1) operates specifically with respect to a law enforcement agency, stating:

“A law enforcement agency is not required to comply with section 9 [dealing with the collection of personal information] if compliance by the agency would prejudice the agency’s law enforcement functions.”

168. It is true that, for example, the Police Minister would not be exempt from the obligation to comply with the requirements of s 9, although the Police Force would be so exempt. The anomaly may be conceded, but it must be of very limited practical significance given the exemption for public sector agencies generally with respect to the more detailed requirements of s 10 with respect to the collection of personal information, the exemption applying if the information is collected for law enforcement purposes. [169]

     169. Privacy Protection Act, s 23(2).

169. More generally, there are two kinds of difficulty with reasoning from anomalies. First, it is necessary to consider the possibility that the existence of the anomaly was overlooked by the legislature and hence cannot affect the intended reading of the statute. Secondly, argument by anomaly is often used partially. That is, it is used to bolster the preferred side of an argument without an attempt to consider countervailing examples. Countervailing examples could arise on the Appeal Panel’s construction of the definition of public sector agency, concerning the consequences of the exclusion of Ministers from the protective provisions of the Act. Thus, although a department could not disclose personal information, the Minister could, thereby apparently undermining the principle that such information be protected from disclosure. Further, because it would appear that the Minister accepted that persons in his office would be bound by the Act, a difficult and perhaps practically impossible distinction would have to be made by a complainant as to whether the information had been publicly released by the Minister or by a member of his or her office. Finally, it might be thought anomalous that the terms of the now repealed Freedom of Information Act and the current Government Information (Public Access) Act require Ministers to consider whether to release information which is personal to an individual and which would, under the Privacy Protection Act, be “personal information”, subject to its protections. No doubt the Minister would act on advice, but again, it would be curious if staff in the Minister’s office, and those within a department administered by the Minister, were subject to controls to which the Minister was not subject.

170. Whilst the surrounding provisions of the legislation cannot be ignored, arguments by reference to possible anomalies are a fragile foundation to read down the otherwise expansive and comprehensive terms of the definition of public sector agency.

Conclusion

171. The parties were not able to provide assistance as to the history of the structure and language of the definition of “public sector agency”, beyond noting that a very similar definition is to be found in the ICAC Act, by way of an inclusive definition of the term “public authority”. [170]

     170. ICAC Act, s 3(1), public authority.

172. It may be accepted that there is no express reference to Ministers of the Crown in the definition, nor would they fall within any limb of the definition other than par (d). In the present case, the conduct, by way of public disclosure, of which complaint is made, is the conduct of the respondent Minister. There was, understandably, no suggestion that in publicising the relevant information he was acting otherwise than in exercising the functions of his office.

173. There was no suggestion in this Court that the findings of the Tribunal that an account was kept of the expenses incurred in the Minister’s office, including expenses incurred in the exercise of his functions, should not have been made. Nor was it disputed that the accounts of those expenses were subject to audit by the Auditor-General. On those assumptions, it would follow that a Minister will fall within the scope of par (d) of the definition. There is no substance in the contentions that other provisions of the Privacy Protection Act require that the definition should be read down so as not to apply to a Minister. Such a course involves an illegitimate rewriting of the definition. It follows that the Senior Member of the Tribunal was correct in his conclusion that the conduct of the Minister was covered and the Appeal Panel was in error.

171. In those circumstances, the Court should make the following orders:

1. Direct that the applicant continue to be known by the letters AQO and direct, pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), that information tending to reveal his identity not be disclosed, on the grounds that such an order is necessary to prevent prejudice to the proper administration of justice and in the public interest, which in this respect significantly outweighs the public interest in open justice, within s 8(1)(a) and (e).

2. Grant the applicant leave to appeal from the decision of the Appeal Panel of the Civil and Administrative Tribunal given on 11 August 2015.

3. Deem the draft notice of appeal contained in the white folder to have been filed and to be the notice of appeal.

4. Set aside the orders of the Appeal Panel allowing the appeal to it and dismissing the application for review.

5. In place of those orders, order that the appeal to the Appeal Panel be dismissed and remit the matter to the Tribunal for further consideration of the application before it.

6. Order that the Minister pay the applicant’s costs of the proceedings in this Court.

175. WARD JA: I have had the opportunity of reading in draft the reasons of both McColl JA and Basten JA. There is no difference between their Honours in the principles of statutory construction to be adopted. Rather, their Honours differ in the application of those principles to the construction of the definition of “public sector agency” in s 3(1) of the Privacy Protection Act.

176. With respect to the presiding judge’s opposing view, I agree with Basten JA that the appeal should be allowed. In my opinion, the strongest argument in favour of the construction for which the Minister contended, and which the presiding judge considers to be correct, is that s 15(6) of the Act (introduced into the legislation in 2010) expressly includes a Minister within the definition of “public sector agency” for the purposes of that section. However, for the reasons given by Basten JA, I do not consider that this can be taken to convey an implied amendment of the then existing definition of “public sector agency”.

177. For the reasons his Honour gives, I agree with the orders proposed by Basten JA.

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Endnotes

Decision last updated: 05 September 2016