Pidgeon and National Disability Insurance Agency

The Administrative Appeals Tribunal (AAT) considered an application by the Applicant and the Respondent, the National Disability Insurance Agency (NDIA), seeking release from an implied undertaking concerning a specific report. This undertaking, often referred to as the *Harman Undertaking*, restricts the use of documents produced under compulsion for purposes other than those for which they were originally provided, unless leave is granted.

The central legal issue before the Tribunal was whether to grant the joint request to release the NDIA from its implied undertaking regarding the identified report. This required the Tribunal to consider the scope of the implied undertaking, as outlined in Part 5 of the AAT's General Practice Direction and the principles established in *Hearne v Street*. The Tribunal also had to determine if the intended use of the document by the NDIA was a collateral purpose or an essential ancillary task related to its statutory obligations.

The Tribunal reasoned that the implied undertaking, as articulated in *Hearne v Street*, applies to documents disclosed under compulsion and prohibits their use for collateral purposes without leave. However, the Tribunal noted that the NDIA has broad statutory powers to request and use information to determine reasonable and necessary supports under the National Disability Insurance Scheme (NDIS). Specifically, the Tribunal found that facilitating the preparation of a participant's plan, including approving a statement of participant supports, is an essential ancillary task to the access decision and not a collateral purpose. Therefore, using the document for this purpose would not breach the undertaking. The Tribunal concluded that a release from the undertaking was unnecessary because the intended use was within the scope of the NDIA's statutory obligations.

Consequently, the Tribunal refused the application dated 19 July 2023, which sought to release the Respondent from the substantive obligations owed with respect to the identified document.