PN v Department of Education and Training - [2009] NSWADT 287

No judgment structure available for this case.

CITATION: PN v Department of Education and Training [2009] NSWADT 287

DIVISION: General Division

PARTIES:
APPLICANT
PN
RESPONDENT
Department Of Education and Training

FILE NUMBER: 053113, 053114

HEARING DATES: 18 February 2008, 6 May 2008 and 13 May 2008

SUBMISSIONS CLOSED: 8 June 2009

DATE OF DECISION:
23 November 2009

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Privacy - information protection principle - personal information – collection- – use - disclosure to third party

LEGISLATION CITED: Privacy and Personal Information Act 1998
Administrative Decisions Tribunal Act 1997
Occupational Health and Safety Act 2000
Workers Compensation Act 1987
Workplace Injury Management and Workers Compensation Act 1998

CASES CITED: Cooper Brookes v FCT (1981) 147 CLR 297
Crewdson v Central Sydney Area Health Service [2002] NSWCA 345
Department of Education and Training v MT [2005] NSWADTAP 77
Director General, Department of Education and Training v MT [2006] NSWCA 270
DO v University of New South Wales (GD) [2002] NSWADTAP 9
DO v University of New South Wales [2002] NSWADT 211
Ferns v Department of Corrective Services [2007] NSWADT 296
FH v Commissioner, New South Wales Department of Corrective Services [2003] NSWADT 73
FM v Macquarie University, [2003] NSWADT 78
GL v Director-General, Department of Education and Training [2003] NSWADT 166
H v Commissioner for Children and Young People [2001] NSWIRComm 256
HW v Director of Public Prosecutions (No 2) [2004] NSWADT 73
JD v Department of Health [2005] NSWADTAP 44
JD v Department of Health [2007] NSWADT 219
JS v Snowy River Shire Council (No 2) [2009] NSWADT 210
MT v Director General NSW Department of Education and Training [2004] NSWADT 194
MY v Director General, Department of Community Services [2004] NSWADT 203
Nakhal Nasar v State of New South Wales [2007] NSWCA 101
NS v Commissioner, Department of Corrective Services [2004] NSWADT 263
NX v Office of the Director of Public Prosecutions [2005] NSWADT 74
NZ v Department of Housing [2005] NSWADT 58
NZ v Health Care Complaints Commission [2006] NSWADT 111
NZ v Health Care Complaints Commission [2006] NSWADTAP 56
PN v Department of Education and Training [2006] NSWADT 122
Purvis v NSW (2003) 217 CLR 92
St Joseph’s Hospital Ltd v Correy (EOD) [2008] NSWADTAP 4
TA v Department of Education and Training [2006] NSWADT 246
Vice-Chancellor Macquarie University v FM [2005] NSWCA 192
WD v Randwick City Council (GD) [2007] NSWADTAP 58
WL v Randwick City Council [2007] NSWADTAP 58
ZR v Director General, New South Wales Department of Education and Training [2008] NSWADT 28
ZR v NSW Department of Education and Training [2009] NSWADT 84

REPRESENTATION:
APPLICANT
L Goodchild, barrister
RESPONDENT
P Ginters, barrister
A Johnson, solicitor

ORDERS: The Tribunal finds that the Department Of Education And Training has not contravened the Privacy and Personal Information Protection Act 1998.

1 In these reasons the names of all private individuals have been anonymised so as to preserve the privacy of their personal affairs. The applicant is referred to as PN.

2 PN identified various complaints under the Privacy and Personal Information Act 1998 (“the PIPP Act”) for a review of certain conduct by employees of the NSW Department of Education and Training (“the respondent”).

3 PN alleges that officers of the respondent provided information to investigators and rehabilitation providers in breach of the PIPP Act’s Information Protection Principles (“IPPs”).

4 In PN v Department of Education and Training [2006] NSWADT 122, I determined, as a preliminary matter, that the information the subject of PN’s complaints was “personal information” within the meaning of the PPIP Act, so as to establish the Tribunal’s jurisdiction to review the conduct of which PN has complained.

Factual background to complaints

5 PN was employed as a teacher at a school (“the School”) operated by the respondent. In early 2003, she lodged an “Employee’s Compensation Claim” in which she stated that she was suffering from depression. After time away from the School she returned on a return to work rehabilitation program in October 2003.

6 In November 2004, PN lodged two separate complaints with the respondent alleging breaches of the PPIP Act by officers of the respondent. The first complaint (“the Principal complaint”) related to conduct of the Principal of the School (“the Principal”), in having completed a “Workplace Injury Notification Form” (Complaint S1) and “Employer’s Report of Injury” (Complaint S2) and an interview with the workers compensation investigator (Complaint S3).

7 The second complaint (“the Staff Member Complaint”) concerned conduct of an executive staff member at the School (“the Staff Member”). The conduct complained of concerned the Staff Member’s communication with Rehabilitation Injury Management (Aust) Pty Ltd (“RIM”) reporting on comments made at the School by PN as well as providing notes regarding PN’s Return to Work Plan.

8 The Director of Legal Services for the respondent undertook the internal review of PN’s complaints and found that there had been no breach of the IPPs and that no further action should be taken on the matter. PN applied to the Tribunal for external review of the conduct that is the subject of the complaints.

Tribunal’s Jurisdiction

9 Section 55 of the PPIP Act and section 37 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”) give the Tribunal jurisdiction to review the conduct that is the subject matter of the complaints. PN complains that officers of the respondent have breached the privacy standards embodied in sections 8 – 12 and 16 – 18 of the PPIP Act.

The PPIP Act provisions

10 PN alleges breaches of sections 8-11 (in relation to the respondent’s collection of personal information), section 12 (in relation to the retention and security of personal information), and sections 16 - 19 (in relation to the respondent’s use and disclosure of personal information. Those sections provide as follows:

8 Collection of personal information for lawful purposes

(1) A public sector agency must not collect personal information unless:

(b) the collection of the information is reasonably necessary for that purpose.

9 Collection of personal information directly from individual

A public sector agency must, in collecting personal information, collect the information directly from the individual to whom the information relates unless:

(b) in the case of information relating to a person who is under the age of 16 years—the information has been provided by a parent or guardian of the person.

10 Requirements when collecting personal information

If a public sector agency collects personal information from an individual, the agency must take such steps as are reasonable in the circumstances to ensure that, before the information is collected or as soon as practicable after collection, the individual to whom the information relates is made aware of the following:

(b) the purposes for which the information is being collected,

(c) the intended recipients of the information,

(d) whether the supply of the information by the individual is required by law or is voluntary, and any consequences for the individual if the information (or any part of it) is not provided,

(e) the existence of any right of access to, and correction of, the information,

(f) the name and address of the agency that is collecting the information and the agency that is to hold the information.

11 Other requirements relating to collection of personal information

If a public sector agency collects personal information from an individual, the agency must take such steps as are reasonable in the circumstances (having regard to the purposes for which the information is collected) to ensure that:

(b) the collection of the information does not intrude to an unreasonable extent on the personal affairs of the individual to whom the information relates.

12 Retention and security of personal information

A public sector agency that holds personal information must ensure:

(b) that the information is disposed of securely and in accordance with any requirements for the retention and disposal of personal information, and

(c) that the information is protected, by taking such security safeguards as are reasonable in the circumstances, against loss, unauthorised access, use, modification or disclosure, and against all other misuse, and

(d) that, if it is necessary for the information to be given to a person in connection with the provision of a service to the agency, everything reasonably within the power of the agency is done to prevent unauthorised use or disclosure of the information.

16 Agency must check accuracy of personal information before use

A public sector agency that holds personal information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading.

17 Limits on use of personal information

A public sector agency that holds personal information must not use the information for a purpose other than that for which it was collected unless:

(b) the other purpose for which the information is used is directly related to the purpose for which the information was collected, or

(c) the use of the information for that other purpose is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual to whom the information relates or of another person.

18 Limits on disclosure of personal information

(1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless:

(b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or

(c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.

19 Special restrictions on disclosure of personal information

(1) A public sector agency must not disclose personal information relating to an individual’s ethnic or racial origin, political opinions, religious or philosophical beliefs, trade union membership or sexual activities unless the disclosure is necessary to prevent a serious and imminent threat to the life or health of the individual concerned or another person.

(2) A public sector agency that holds personal information must not disclose the information to any person or body who is in a jurisdiction outside New South Wales or to a Commonwealth agency unless:

(b) the disclosure is permitted under a privacy code of practice.

relevant privacy law

(4) The Privacy Commissioner is to prepare a code relating to the disclosure of personal information by public sector agencies to persons or bodies outside New South Wales and to Commonwealth agencies.

(5) Subsection (2) does not apply:

(b) until a code referred to in subsection (4) is made,

whichever is the later.

11 The respondent contends it has not breached any of these provisions and in the alternative, it relies upon section 25 of the PPIP Act, which provides:

25 Exemptions where non-compliance is lawfully authorised or required

A public sector agency is not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 if:

(a) the agency is lawfully authorised or required not to comply with the principle concerned, or

(b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998).

12 The respondent argues that the Workplace Injury Management and Workers Compensation Act 1998 (“the WIMWCA”) either explicitly or implicitly, authorised or required the conduct that is the subject of PN’s complaints.

The Principal complaint

13 The Principal complaint consists of an 11 page hand-written document with appendices consisting of 69 pages. It contains allegations or complaints, which are identified as S1, S2, S3, S4 and S5.

S1

14 The Principal completed a Workplace Injury Notification Form (dated 11 February 2003) reporting an alleged injury "depression due to workplace difficulties" (as described by "PN"). This Form was provided to GIO Injury Management Centre (“GIO”) and the Personnel Support Officer with the respondent’s St George District Office (“the Support Officer”).

15 PN complains about the comments that the Principal wrote on the Workplace Injury Notification Form. Under a section that asks:

“(Optional) is this claim questionable” [Yes was circled]:

“If Yes, please comment:”

The Principal wrote

“there has been ongoing conflict in the faculty. Mediation has been implemented & ongoing strategies are in place to manage situation."

16 The Principal completed an Employer's Report of Injury (dated 27 February 2003) reporting to GIO and the Support Officer. PN complains about a comment that appears on that form under a section that requests:

"Details of previous related injuries if known”

The Principal wrote

“On going conflict.”

17 Under a section that requests:

“GIVE DETAILS OF OTHER CIRCUMSTANCES WHICH WOULD ASSIST THE INSURER TO ASSESS THE CLAIM (Eg. Do you query the validity of the claim? If so, why?)”

The Principal wrote

“In my opinion, this is part of a complex, ongoing situation”

18 The Principal provided ‘employer’s perspective’ information with respect to PN’s injury claim. PN complains that the Principal made a number of fabricated, unsubstantiated statements to the workers compensation investigator.

S4

19 PN complains that the Principal provided unauthorised records regarding an incident at a faculty meeting on 25 November 2003 to the Staff Member, and authorised her to send these documents to the GIO Insurance based rehabilitation provider (the Rehabilitation Provider).

S5

20 PN complains that she did not authorise the Principal to exchange information with her Rehabilitation Provider, nor was the Principal authorised to do so by PN’s employer. PN’s employer had not assessed the Principal’s information for its accuracy and validity. PN was not given an opportunity to make corrections or amendments. PN complains that the Principal's actions were beyond the scope of her duties and constitute abuse of power and that she provided unauthorised information in bad faith and displayed corrupt conduct.

The Staff Member complaint

21 The Staff Member complaint consists of a 20 page hand-written document with appendices consisting of 50 pages. It contains allegations or complaints identified as T1 and T2:

T1

22 PN complains that shortly after her return to work on 20 October 2003 the Staff Member began to contact her Rehabilitation Provider and reported her disappointment about PN’s participation in the School's life. PN says that on 8 December 2003, the Staff Member advised PN’s Rehabilitation Provider that PN was a difficult person to communicate with and offered to prepare and send a detailed report on PN’s rehabilitation progress to PN’s Rehabilitation Provider.

23 PN submits that the Staff Member’s actions were illegal and corrupt. PN says that the Staff Member did not have PN’s permission to exchange information with PN’s Rehabilitation Provider nor was she authorised by PN’s employer to undertake such actions. PN says that the Staff Member's actions were beyond the scope of her duties and constitute abuse of power.

T2

24 PN complains that in her Report dated 9 December 2003 the Staff Member made numerous inaccurate, misleading and dishonest statements and expressed personal, discriminatory opinions based on intentional bias.

Complaint S1

25 The respondent submits that the comment the Principal wrote on the Workplace Injury Notification Form is not an opinion “about” an individual as required by section 4(1) of the PPIP Act. Rather, the respondent submitted that it is information concerning grievances within the Mathematics Faculty at the School and their relationship to PN’s workplace injury claim. It submitted that if the information was “personal information” about PN, it must also be “personal information” about other members of the Mathematics Faculty. This would give rise to PPIP Act obligations in relation to all staff members in relation to the completion of PN’s Workplace Injury Notification Form. To construe the PPIP Act in this manner would, in the language of Mason and Wilson JJ in Cooper Brookes v FCT (1981) 147 CLR 297 at 321, be “absurd”, “extraordinary”, “capricious”, “irrational” or “obscure”. The respondent submitted that the Tribunal has no jurisdiction to deal with Complaint S1.

26 In the alternative, the respondent submitted that the WIMWCA required the respondent (through the Principal) to notify its insurer within 48 hours after becoming aware that a worker had received a significant workplace injury, in accordance with section 44(2) of the WIMWCA. Section 44 provides:

(1) An injured worker must notify the employer that the worker has received a workplace injury as soon as possible after the injury happens.

(2) The employer of an injured worker must notify the insurer within 48 hours after becoming aware that a worker has received a workplace injury that seems to be a significant injury.

(3) If a workplace injury does not seem to be a significant injury, the employer must notify the insurer within 7 days after becoming aware that the worker has received the injury.

…

27 GIO, the respondent’s insurer, required the respondent to use the form that was completed by the Principal. It contends that in completing the form, including the optional parts of the form, the respondent was lawfully authorised not to comply with sections 9, 10, 13, 14, 15, 17 or 18 of the PPIP Act: section 25(a). In the alternative, the respondent submitted that its non-compliance with those principles was necessarily implied or reasonably contemplated: section 25(b) of the PPIP Act.

28 The respondent submitted that the Principal’s perception of the workplace difficulties was highly relevant to the assessment of PN’s workers’ compensation claim and was entirely consistent with the purpose of the document as a whole. The Principal gave evidence before the Tribunal that she was told by the respondent’s staff welfare officer that she should complete the “optional” section of the relevant form. The respondent claims that it is unnecessary to consider Complaint S1 further, as the actions of the respondent were excused by section 25 of the PPIP Act.

29 Applicant’s submissions on section 8: PN argues that the information included in the Workplace Injury Notification Form constitutes a collection of information contrary to section 8 of the PPIP Act. It is said that by the commentary provided by the Principal, the respondent has referred to matters not directly related to an injury or workplace injury as required but she has referred to ongoing conflict in the faculty and matters not directly related to any workplace injury. She referred to conflict and issues within the faculty with respect to the question of whether the claim is questionable. It is argued that the commentary was unnecessary and irrelevant and not directly related to the function or activity for which the Form was established.

30 Respondent’s submissions on section 8: The respondent submits that the information the subject of the complaint was not “collected”: cf. GL v Director General, Department of Education and Training [2003] NSWADT 166; TA v Department of Education and Training [2006] NSWADT 246 at paragraph [29]. Rather, it is contended that what is recorded is the Principal’s observations derived from her knowledge of and involvement in the attempts to resolve PN’s complaints. The Principal gave evidence that she was involved in dealing with PN’s complaints of bullying and the mediation that was meant to resolve it. There was no need for her to “collect” information from PN, because she was fully aware of the subject matter of her comment from her own observations. The respondent claims that sections 8, 9, 10 and 11 of the PPIP Act can have no application.

31 The respondent argued that the word “collect” in the PPIP Act connotes more than the mere recording of information already held in the author’s mind. Textually, it is submitted that Parliament contemplated that collection would involve the solicited receipt of information from a third party, by reference to the fact that it has excluded the receipt of unsolicited information from the definition of collection: section 4(4) of the PPIP Act.

32 Information held in the minds of employees is not personal information that is held by the respondent that they work for: Vice-Chancellor Macquarie University v FM [2005] NSWCA 192 at paragraphs [28], [40], [42] – [43]. The respondent submitted that recording information held in the minds of an officer, which then forms a part document based on the author’s knowledge is not collected by the respondent that the officer works for, although it may give rise to obligations pursuant to sections 12 – 19 of the PPIP Act.

33 Alternatively, the respondent submitted that even if the information the subject of the complaint was collected it was collected for a lawful purpose that is directly related to a function or activity of the respondent, namely the reporting of employees’ workplace injury claims: section 8(1)(a) of the PPIP Act. Moreover, the collection was said to be reasonably necessary for that purpose: section 8(1)(b) of the PPIP Act.

34 Applicant’s submissions on section 9: Section 9 of the PPIP Act provides that the respondent must, when collecting personal information, collect that information directly from the individual to whom the information relates unless the collection has been authorized by the individual concerned. PN argues that the collection of the information in the Workplace Injury Notification Form was not collected directly from her and nor did she authorise the collection of that information.

35 Respondent’s submissions on section 9: For the reasons argued in relation to section 8 of the PPIP Act, the respondent claims it was not “collecting” personal information, so that section 9 has no application. The respondent contends that if it was collecting information, the respondent and its officers were not required to comply with section 9 because of the operation of section 25 of the PPIP Act.

36 A worker who is injured in circumstances where the worker’s employment was a substantial contributing factor, is entitled to be compensated by their employer for that injury under the provisions of the Workers Compensation Act 1987 (“the WCA”). The factors to be considered when determining whether work was a substantial contributing factor to the injury are set out in section 9A of the WCA. Additionally, section 11A(1) of the WCA provides that a worker who suffers from a psychological injury is not entitled to receive compensation for that injury if:

(1) …. the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.

37 A psychological injury is defined in section 11A(2) to be an injury that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system. Where a claim is made for a psychological injury sustained in the workplace there are at least three matters to be considered before liability can be admitted for that claim:

- do the symptoms constitute a psychological or psychiatric disorder?

- was the work a substantial contributing factor to that injury? and

- was the injury wholly or predominately caused by the reasonable actions of the employer in respect of a transfer, demotion, promotion, performance appraisal, discipline, retrenchment, dismissal or the provision of employment benefits?

38 The respondent submits that, in relation to a workplace injury claim for a psychological injury an employer or its insurer will need additional factual and/or medical information to that provided by the worker before it is able to assess the matters set out above and decide whether to accept liability for the claim.

39 Given the restrictions imposed on liability by sections 9A and 11A, some of the issues to be considered in assessing the question of liability include, by definition, an understanding of workplace issues. The respondent contends that it could not have been contemplated that employers and insurers would rely only on the claimant’s version of events. A proper understanding in this regard could only be obtained if additional information is sought from a claimant’s work colleagues, managers and others. A means of obtaining this additional information is by requesting that it be provided in the employer’s notification.

40 In these circumstances, the respondent argued that the disclosure of the information by the Principal was lawfully authorised by the WIMCA Act. Alternatively, the respondent contended that the disclosures were necessarily implied or reasonably contemplated by the WIMCA Act, and the respondent is not required to comply with section 9 of the PPIP Act.

41 The respondent contends that it would be “absurd”, “extraordinary”, “capricious”, “irrational” or “obscure” to construe section 9 as applying in the present context where a psychological injury claim has been notified: Cooper Brookes. It cannot be that in collecting “personal information” in the context of a workers compensation claim, that an agency be confined by the literal structures of section 9 of the PPIP Act. In construing section 9, regard must be had to the respondent’s other functions, powers and responsibilities: Purvis v NSW (2003) 217 CLR 92 at paragraph [7] per Gleeson CJ; St Joseph’s Hospital Ltd v Correy (EOD) [2008] NSWADTAP 4 at paragraphs [20]-[22]. Moreover, the respondent submits that the fact that the PPIP Act is beneficial legislation does not mean that it must be interpreted in such a way that whatever may be regarded as improving its enforcement must fall within the intention of the legislature: Director General, Department of Education and Training v MT [2006] NSWCA 270 at paragraphs [49]-[50] (citing Rodriguez v United States 480 US 552 (1987) at 525 – 526.

42 Applicant’s submissions on section 10: PN claims that the respondent has breached section 10 because the matters in section 10(a)-(f) have not been brought to her attention, before the information was collected, or as soon as practicable after the collection. The respondent bears the onus to show that PN was aware that the information was being collected and the purpose of its collection.

43 Applicant’s submissions on section 11: Section 11 of the PPIP Act provides that the respondent must take reasonable steps to ensure that the information collected is relevant to the purpose for which it is collected, that it is not excessive, and that it is accurate, up to date and complete. It must also take reasonable steps to ensure that the collection of the information does not intrude to an unreasonable extent on the personal affairs of the individual to whom the information relates.

44 PN argues that the provision for commentary by the principal, for the purpose of completing the Form, is to allow the manager of the respondent to notify the regional office of the respondent of a workplace injury. PN complains that the collection of the information intruded to an unreasonable extent, on her personal affairs.

45 Respondent’s submissions on sections 10 and 11: The respondent relies upon its submissions in relation to section 8 of the PPIP Act, and says that it was not “collecting” personal information and sections 10 and 11 have no application. The respondent claims that in any event, sections 10 and 11 only have application to a standard case of direct collection. Where an agency is not engaged in direct collection it is not subject to the requirements of section 10 and 11 of the PPIP Act: HW v Director of Public Prosecutions (No 2) [2004] NSWADT 73 at paragraphs [20]- [25].

46 Applicant’s submissions on section 12: Section 12 of the PPIP Act provides that a respondent holding personal information must ensure that it is retained and secure as provided in subsections (a)-(d). By the use and disclosure of the information, the use and disclosure of the information in the form of a commentary in the Workplace Injury Notification Form, the respondent has not taken reasonable action to protect the information from unauthorised use and disclosure of personal information.

47 Respondent’s submissions on section 12: The respondent submits that there was no unauthorised disclosure of information and section 12 has no application. The respondent submits that applicant’s submissions on this point are dependent upon the Tribunal accepting that the inclusion of the information on the Workplace Injury Notification Form was improper and unauthorised.

48 The respondent says that the PPIP Act must be construed as a whole. Each IPP is directed towards regulating a different aspect of an agency’s conduct and it is unlikely that the obligations established by each IPP will overlap. When considered in the context of the other IPPs, section 12 is plainly directed towards the storage mechanisms and information management systems that an agency has in place: FH v Commissioner, New South Wales Department of Corrective Services [2003] NSWADT 73. Other IPPs are directly concerned with the lawfulness of the collection or disclosure of information. Section 12 is not directed towards those issues.

49 It was argued by the respondent, that this approach is consistent with that taken by the Court of Appeal in Director General, Department of Education and Training v MT [2006] NSWCA 270; (2006) 67 NSWLR 237. In that case, the Court considered a complaint against a teacher who accessed a student’s file for purposes related to his private role as a soccer coach. The respondent accepted that the access was unauthorised and conceded a breach of section 12(c). MT had alleged that the same conduct involved a contravention of sections 16, 18 and 19 of the PPIP Act. Spigelman CJ, (Ipp JA and Hunt AJA agreeing) said at paragraph [29]:

29 It is clear from this legislative scheme that the focus of attention is on protecting the privacy interests of persons about whom public agencies collect information. However, it is also a purpose of the legislative scheme to ensure the effective conduct of the public agencies by establishing a mechanism to determine the relevance and accuracy of the information held by such agencies.

50 The respondent referred to paragraph [41], where Spigelman CJ suggested that when information had been used for a non-agency purpose, then section 12(c) was the most relevant obligation. His Honour then said at paragraph [47]:

47 In a case such as the present, where there is a breach of s12 by the agency of a kind which permitted unauthorised use or disclosure, I can see no purpose of the Act which will be served by imposing additional liability upon an agency under any of ss16, 17 or 18. Ms Pritchard submitted that there was a limitation upon liability under ss16, 18 and 19 for conduct in which an employee acts in an unauthorised way. That limitation was to be found in s12(c). She submitted that a contravention of s12(c) was a gateway to the other sections. I would reject this submission.

51 The respondent submits that PN’s claim under section 12 is simply an attempt to replicate her claims made under sections 8 to 10 and 16 to 19.

52 Applicant’s submissions on sections 16 and 17: Section 16 of the PPIP Act provides that an agency must check the accuracy of the personal information before it is used. There is no evidence that the accuracy of the information was checked by the respondent. By including the commentary in the Form, PN contends that the information released by the Principal was irrelevant, inaccurate, incomplete and misleading.

53 Section 17 of the PPIP Act provides that an agency must not use personal information for a purpose other than that for which it was collected unless the individual to whom the information relates has consented to the use of the information, or the use of the information is directly related to the purpose for which the information was collected or the use of the information is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual.

54 PN argues that she did not consent to the use of her personal information and further, that the information was not directly related to the purpose for which it was collected. The Principal referred to matters that were not directly related to the alleged injury, but that were instead concerned with conflict and management issues within the School. The provision of this information on a Workplace Injury Form was not directly related to management issues within the faculty.

55 Respondent’s submissions on section 16 and 17: The respondent submitted that it was difficult to understand how it could be said to have “used” the information contrary to sections 16 or 17. An agency “uses” information when that information stays within the agency: NZ v Department of Housing [2005] NSWADT 58 at paragraph [69]; JD v Department of Health [2005] NSWADTAP 44 at paragraph [93]. The evidence of the Principal was that the purpose of completing the form was to notify the insurer.

56 PN’s evidence was that she was bullied and that there were no effective strategies in place to manage the bullying. She appears to take issue with the comment that there was "conflict" in the workplace which was being managed." The respondent contends that PN’s complaint of a breach of section 16 is simply because she disagrees with the opinion that has been expressed. The respondent says that a difference of opinion does not make the Principal’s opinion inaccurate. This is nothing more than a difference of opinion, which is beyond the jurisdiction of the Tribunal. The respondent refers to the decision of the Court of Appeal decision in Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 at paragraphs [21] and [34], rejecting this argument in the context of amendment applications under the Freedom of Information Act 1989. The respondent submits that this reasoning has also been applied in the Tribunal citing Ferns v Department of Corrective Services [2007] NSWADT 296, where Higgins JM said at paragraph [32]:

Crewdson

Chand

57 Alternatively, the respondent claimed that the Principal did take such steps as were reasonable in the circumstances to ensure that the information was relevant, accurate, up to date, complete and not misleading. In regard to the words “reasonable in the circumstances” in section 16 and the respondent submits that it is clear that context is critical to the assessment of what section 16 requires. The respondent says that the context in the present circumstances required a response:

b) In 48 hours; and

c)In a box limited to the space of two lines.

58 The respondent said that it could not be suggested that the steps taken by the Principal were “[un]reasonable in the circumstances.” The assessment of reasonableness must have regard to context – i.e. the nature of the alleged injury, the timeframe for the provision of the employer’s notification and the fact that the notification invited the provision of an employer’s opinion. The respondent submitted that it was reasonable for the Principal to include her own assessment based on her own observations.

59 The respondent submitted in the alternative, that the evidence of the witnesses before the Tribunal would properly lead the Tribunal to conclude that the Principal’s description of the circumstances surrounding PN’s claim were accurate.

60 The respondent relies on its submissions in relation to whether information was collected and whether the information was used. However, it submits that if those submissions are not accepted, and it is found that the information was “collected” and “used” then it should also be found that the collected information was used for the purpose for which it was collected. It says that the collected information was used to advise of the circumstances surrounding PN’s workplace injury claim.

61 The respondent further submitted that to the extent that there was a non-compliance with section 17 of the PPIP Act, that was permitted or necessarily implied or reasonably contemplated by the workers’ compensation legislation: section 25(b) of the PPIP Act.

62 Applicant’s submissions on section 18: Section 18 of the PPIP Act provides that an agency holding personal information must not disclose such information to a person or body unless the disclosure is directly related to the purpose for which the information was collected and that the individual is reasonably likely to have been aware that the information of that kind is usually disclosed or the agency believes on reasonable grounds that the disclosure was necessary to prevent or lessen a serious and imminent threat to the life or health of the individual.

63 Section 18 also provides that if the information is disclosed, the respondent must not use or disclose the information for a purpose other than the purpose for which it was given. In the present case, PN argues that the respondent has disclosed information for a purpose unrelated to the purpose for which it was collected and further that the respondent would have no reason to consider that the information that was disclosed by way of the commentary is the type of information that would normally be disclosed for the purpose of the completion of a Workplace Injury Notification Form by an executive member of stag of the respondent.

64 PN argues that the information the subject of the complaint was ‘collected’ for the purpose of the PPIP Act. The information was gathered together, regardless of whether it was held in the mind of the Principal, or was in the nature of an opinion held by the Principal. The information was reduced to writing on the Workplace Injury Notification Form. PN accepts that the respondent has obligations under the WIMWCA or the WCA. However, PN submits that the respondent has provided no evidence that the particular information provided by the respondent (in the form of the question “Is the claim questionable?”) was required in order to satisfy its obligations pursuant to either the WIMWCA or the WCA. The investigation of workplace injury is contracted out by the respondent, and the Principal is not engaged in any investigative process.

65 PN argues that she did not allege that she suffered from a workplace injury. At the time in which the Workplace Injury Notification Form was completed, the complaint alleged she suffered from “depression due to workplace difficulties”. Any comments provided by an employee as to whether the claim is questionable, were irrelevant to the purpose of the Form.

66 Respondent’s submissions on section 18: The respondent referred to PN’s evidence that following her experience with an ankle injury in 2001, she supposed that once a workers compensation claim was made the forms that she filled out would be sent to GIO so that the workers compensation payments could begin. The respondent submitted that PN had ultimately agreed in cross-examination that a workers compensation insurer would need to understand whether a claim of bullying was legitimate (Transcript 6 May, 23) and that the only way the insurer could do this was by obtaining feedback on the legitimacy of any claim from the respondent (Transcript 6 May, 25). The respondent submitted that PN therefore knew that information of the kind included in Complaint S1 would be disclosed to GIO. Therefore, it was submitted, the respondent was not in breach of section 18(1)(b).

67 In the alternative the disclosure of the Principal’s comments was for a purpose directly related to the purpose for which it was sought, namely, for managing the workers compensation claim. The respondent submitted that there would be no reason to think that PN would object to disclosure of the respondent’s assessment of her claim, given that it as an ordinary part of processing such a claim. In the context of a claimed psychological injury and having regard to its constituent elements, an injured teacher should be taken to be reasonably likely to have been aware that information of the kind disclosed would be disclosed: section 18(1)(b) of the PPIP Act.

68 The respondent also relied upon section 25(b) of the PPIP Act, to the extent that there was non compliance with section 18, it claimed that it was permitted or necessarily implied or reasonably contemplated by the workers’ compensation legislation.

Complaint S2

69 The Principal of the School completed an Employer’s Report of Injury (dated 27 February 2003). The following was set out by the Principal in response to questions on the form:

“Details of previous related injuries if known.

[the Principal wrote]

Ongoing conflict.”

“Give details of other circumstances which would assist the insurer to assess the claim (eg, do you query the validity of the claim? If so, why?)

[the Principal wrote]

In my opinion, this is part of a complex ongoing situation.”

70 Applicant’s submissions in relation to Complaint S2: PN argues that for the reasons expounded in relation to breaches of the PPIP Act for the purposes of Compliant S1, the actions by the Principal indicating the opinion in the Employee’s Report of Injury Form, the respondent has breached sections 8 – 12 and 16 – 18.

71 PN completed an authorisation relating to her workplace injury claim, in the following terms:

“I hereby authorise any medical practitioner or other authority to provide GIO with any and all information regarding my medical and/or factual history in respect of injury on 7/2/03. A photocopy of this authority shall be as valid as the original. I also hereby consent to the disclosure of any medical and/or factual information in respect of this injury to such person or persons as considered appropriate in connection with the claim.

72 PN argues that this authorisation does not provide for the release of information other than appropriate in connection with the claim. She says that the information released by the respondent cannot be considered appropriate in connection with the claim.

73 Respondent’s submissions in relation to Complaint S2: The respondent submitted that the comments that are the subject of Complaint S2 were not “about” PN within the meaning of section (4)(1) of the PPIP Act and they could not involve a breach of the Act.

74 The respondent submitted that in the alternative, that it did not breach sections 9, 10, 13, 14, 15, 17 or 18 of the PPIP Act because its conduct was lawfully authorized or non-compliance was otherwise permitted by the WIMWCA and the WCA.

75 The respondent repeated its submissions in relation to Complaint S1 regarding section 8 of the PPIP Act i.e. information was not collected by the respondent for the purposes of the Complaint. The respondent also notes that the Employer’s Report of Injury Form calls for an opinion to be expressed. The respondent submitted that such an opinion must necessarily reflect information that is held in the mind of an employee.

76 In relation to section 9 of the PPIP Act, the respondent reiterates its submissions made in response to Complaint S1. It submits that in any event, PN authorised the collection of the information in the document that forms the basis to Complaint S2: section 9(a) of the PPIP Act and DO v University of New South Wales [2002] NSWADT 211; DO v University of New South Wales (GD) [2002] NSWADTAP 9. It refers to the authorisation given by PN in her Employee’s Compensation Claim. The respondent submits that the authorisation and the workers’ compensation legislation bring section 25 of the PPIP Act into operation.

77 The respondent repeats its submissions made in relation to Complaint S1 regarding sections 10, 11, 12, 16 and 17 of the PPIP Act.

78 The respondent submitted that PN’s complaint of a breach of section 16 appeared to be based on her disagreement with the Principal’s opinions.

79 In relation to section 17, the respondent submitted that assuming the information was “collected” it was used for the purpose for which it was collected, namely, to advise of the circumstances surrounding PN’s workplace injury claim. The respondent claims that, assuming that the “collected” information was used for some “other purpose”:

- the “other purpose” was directly related to the purpose for which the information was collected: section 17(b) of the PPIP Act.

80 The respondent submitted that to the extent that there was non compliance with section 17 of the PPIP Act, it was authorised by PN or otherwise permitted or necessarily implied or reasonably contemplated by the workers’ compensation legislation: section 25(a) and (b) of the PPIP Act.

81 In relation to section 18 of the PPIP Act, the respondent relies upon its submissions relating to Complaint S1. The respondent argues that the fact that PN provided the authorisation that she did supports the proposition that the respondent had no reason to believe that she would object to disclosure (s 18(1)(a) and that PN was reasonably likely to have been aware that information is usually disclosed (s 18(1)(b)).

Complaint S3

82 Applicant’s submissions: the workers compensation investigator, Claims Intervention, investigated PN’s compensation claim. Claims Intervention was a service provider that GIO used to assess issues of liability for injury. Claims Intervention was contracted by the respondent to investigate PN’s workers compensation claim. A document headed ‘Employer’s perspective’, prepared during the investigation, recorded the content of interviews with the Principal and the respondent’s St George Office staff welfare officer. PN claims that this document contains inaccuracies, untruths and unfounded accusations that were provided to the investigator by the Principal. She says that the Principal was not authorised by the respondent to represent the respondent for the purpose of the investigation.

83 PN claims that during the investigation the Principal provided information and opinions that were unrelated to PN’s workers compensation claim. She says that the Principal provided personal information to GIO for which no consent was sought from or provided by PN. She also says that the Principal provided personal information that was not directly related to or for the lawful purpose of PN’s injury, but related to other matters. A third party was collecting this information about PN. PN was not made aware that the information was being collected, the purpose of the information or the intended recipients of the information.

84 PN argues that the information that the Principal provided was inaccurate, incomplete and misleading. She says that the respondent never sought PN’s consent nor did she ever give consent to the use or disclosure of her personal information. PN claims that the principal also disclosed personal information relating to her ethnic origin and philosophical beliefs in breach of section 19 of the PPIP Act.

85 PN claims that the Principal also disclosed to the investigator personal information concerning her complaints against the head teacher and the failure by the head teacher to implement the mediation agreement; personal information concerning PN’s nomination for a transfer; and information concerning an ankle injury that she had suffered. She says that the personal information was not information held solely in the mind of the Principal but was information provided in various documentary forms by PN to the Principal or otherwise collected by the respondent. There was no evidence tendered showing PN’s consent had been obtained prior to the release of the information to the investigator. No evidence was led to show that the release of the information to the investigator was related to the purpose for which the information was collected.

86 Respondent’s Submissions: The respondent referred to the Claims Investigator’s evidence that an investigator would interview the worker, the employer and anyone else who might be able to give relevant information in connection with an alleged workplace injury. As the Principal was asked to participate in the interview by the Investigator, the respondent submitted that the Tribunal should presume that the comments she made were part of her employer’s obligation to assist its insurer in assessing liability for PN’s alleged psychological injury.

87 The respondent again referred to sections 9A and 11A of the WCA insofar as these provisions restrict an employer’s liability for psychological injury. Employment must be a substantial contributing factor to the injury and liability is excluded in relation to a number of issues. Assessment of liability necessarily involves understanding the circumstances of the injury. The respondent submitted it would be absurd to suggest that the insurer may only rely on the claimant’s version of events. As such, the comments were said to be lawfully authorised by the WCA or non-compliance with the PPIP Act was necessarily implied or reasonably contemplated by the WCA. Therefore, it submits, the comments the subject of the complaint were excused by section 25 of the PPIP Act.

88 The respondent submitted that information was not collected by it for the purposes of Complaint S3 and sections 8-11 have no application. Information located in the mind of the Principal and then related to Claims Intervention is not information held by the respondent: Vice Chancellor Macquarie University v FM [2005] NSWCA 192, [28], [40], [42]-[43]. The respondent contended that until the observations were recorded by the person conducting the interview, they were outside the scope of the PPIP Act.

89 Furthermore, the respondent submitted that the collection of the information that is the subject of the complaint allegations by Claims Intervention was not done by a public sector agency and could not involve a breach of the PPIP Act: TA v Department of Education and Training [2006] NSWADT 246 at paragraph [25].

90 In any event, if there was a collection for the purposes of section 9, PN authorised the collection of information by virtue of the declaration made in the Employee’s Compensation Claim Form completed on 21 February 2003: section 9(a) of the PPIP Act.

91 The respondent relied upon its Compliant S1 submissions in relation to section 12.

92 In relation to section 16, the respondent submitted that information located in the mind of the Principal and then related to Claims Intervention is not information held by the respondent: Vice Chancellor Macquarie University v FM [2005] NSWCA 192, [28], [40], [42]-[43]. It claimed that it could not be said that disclosing information to an external person involved a “use”.

93 The respondent again alleged that PN’s claim appeared to be based on her disagreement with the Principal’s opinion.

94 The purpose for which the Principal was interviewed was to collect the employer’s views on PN’s work and workplace. PN was also interviewed for this purpose. The respondent argued that to the extent to which there was non compliance with section 16 of the PPIP Act, it was authorised by PN or permitted or necessarily implied or reasonably contemplated by the workers’ compensation legislation: section 25(a) and (b) of the PPIP Act.

95 In relation to section 17, the respondent referred to PN’s authorisation that any authority could provide GIO with any or all information relating to her medical or factual history. The respondent submitted that PN therefore consented to the Principal being interviewed by the GIO’s representative, Claims Intervention. The respondent submitted that particularly in the case of psychological injury the factual background to an injury will involve obtaining and assessing the recollections of the worker and fellow employees. PN must have contemplated, by the terms of the Authority that she signed, that GIO would have to investigate her claim, and the investigation would involve someone speaking with the Principal.

96 In relation to section 18, the respondent contends that because the information was contained in the mind of the Principal, the information was not held by it: Vice Chancellor Macquarie University v FM [2005] NSWCA 192 at paragraphs [28], [40], [42]-[43]. It submitted that section 18 has no application. The respondent submitted that PN was aware that the employer’s views as to the legitimacy of her workers application claim was going to have to be discussed with the respondent’s insurer. By signing the authority, PN was made aware that information of this kind would be disclosed to GIO and agreed to such disclosure: section 18(1)(a) and (b).

97 In relation to the claimed contravention of section 19, the disclosure was inferred by the respondent to be the Principal’s reference to “cultural difference”. The Principal gave evidence that her comments related to the fact that PN was used to a different and more structured workplace culture. The Respondent contends that a comment about “workplace cultural differences” is not information about PN’s ethnic or racial origin and there could be no breach of section 19. The respondent submitted that section 19 was plainly intended to set a high bar for breaches which deal with highly sensitive personal information, of a kind that has often been the basis of discrimination and largely covered by anti-discrimination legislation. The respondent submits that section 19 should be narrowly construed.

98 In the alternative, the respondent contended that for a comment to amount to a disclosure, it must reveal information that was not already known to the person to whom the statement was made. The respondent referred to Nakhal Nasar v State of New South Wales [2007] NSWCA 101 where the appellant had submitted that the release of charge sheets was a contravention of section 18 of the PPIP Act. Campbell JA, with whom Beazley and Hodgson JJA agreed at paragraph [127]:

R v Skeen & Freeman

Foster v Federal

Commissioner of Taxation

(

R v Gidlow

Dun & Bradstreet (Australia) Pty Ltd v Lyle

A-G v Associated Newspapers Ltd

Real Estate Opportunities Limited v Aberdeen Asset Managers Jersey Limited

“

99 The respondent submitted that Campbell JA applied the same reasoning at paragraph [123] and found there was no breach of section 18 of the PPIP Act.

100 The respondent contended that on her original compensation claim form, PN noted that her country of birth was Poland. The fact that PN was Polish would have been apparent to the person interviewing her. The Respondent submitted that the comments that PN was from a different cultural background could not have disclosed anything that was not already known to the interviewer.

Complaints S4 and S5

101 After an incident at a Faculty meeting at the School on 25 November 2003, the Principal interviewed a number of members of staff.

102 At the time of the Faculty meeting, PN was at the School as part of a Return to Work Program, developed under section 52 of the WIMWCA. Both PN and the respondent were required to comply with this Return to Work Program. Although she was not at the Faculty Meeting, the Principal was informed that there had been a difficulty at the meeting and went to the Maths staff room. The Principal then spoke with PN, who claimed that she had been bullied again at the Faculty meeting.

103 This was the context in which the Principal interviewed various members of staff. The Principal made notes of these interviews. The notes contained personal information of PN (Complaint S4) and subsequently the Principal provided a copy of those notes to the Staff Member - PN’s alternative head teacher (Complaint S5). The Staff Member initialled a copy of the notes as being an accurate record of what was said. The Principal authorised the Staff Member to forward these notes to the Rehabilitation Provider.

104 Applicant’s submissions in relation to Complaint S4 and S5: PN submitted that her consent was not sought before this action was taken. PN never consented to the collection, use or disclosure of the information by the Principal to the staff member. The information was not being collected: section 8. The collection of the personal information was not collected directly from her: section 9. No steps were taken before the information was collected by the Principal or as soon as practicable after the collection to make PN aware of the fact that the information was collected, the purpose for its collection, the intended recipient of the information, whether the supply of the information was voluntary or the consequences, if any, if the information was not provided, the rights of access and correction of the information.

105 PN argues that the information collected was in part irrelevant, inaccurate and incomplete. The information collected represented a selective recording of interviews taken from both PN and a number of other staff members on 25 November 2003 after the alleged incident. The respondent did not provide evidence that the collection of the information was for a lawful purpose. The collection of the information for a purported inquiry that did not eventuate is not a collection for a lawful purpose. Further, it is not a lawful purpose of the collection of information by the respondent with the intent to pass it on to a third party. No evidence has been shown to establish that the employees of the respondent were required to undertake an investigative role so that such disclosure was authorised.

106 The respondent did not ensure that the information was disposed of securely, that it was protected from misuse and that when the information was passed on that there was no unauthorised use or disclosure of the information.

107 PN claims that by holding the notes prepared by the Principal, the respondent used the information for a purpose other than the purpose for which they were collected. The notes were passed on to the Staff Member and forwarded to the rehabilitation provider for the workers compensation insurer.

108 PN claims that the respondent disclosed the information contrary to the principles set out in the Act. The disclosure was not directly related to the purpose for which the information was collected. The disclosure of the notes to both the Staff Member and then to the rehabilitation provider was a disclosure for a purpose other than the purpose for which the information was collected. The collection, use and disclosure of the information forming the basis of PN’s complaint breached the respondent’s policy for responding to suggestions, complaints and allegations. PN also alleges that it breached the respondent’s Privacy Code of Practice and represented bad faith in the exercise of the duties of a public official. PN seeks to distinguish the decision of TA v Department of Education and Training [2006] NSWADT 246, by reference to the fact that the information released by the respondent to the third party was not information that was collected or recorded in the context of a workers compensation claim.

109 PN submitted that the role of the Staff Member was to act as an "alternate head teacher", offering her skills as a communication conduit between PN and the Head of Mathematics. That was the extent of her role. The Staff Member was not asked to have any dealings with PN's Return to Work Plan, other than in that limited capacity as facilitator between PN and the Head of Mathematics. PN claims that the Staff Member had no role in the creation of the Return to Work Plan, no role in its implementation, no role in assessing its progress and no role in providing comments on its viability.

110 In light of the above, PN claims that the Principal's authorisation of the Staff Member to send PN's insurer a collection of records concerning PN, including the Staff Member's own "personal notes'" was a breach of section 17 of the PPIPA which limits the use of personal information for a purpose other than for which it was collected. PN submitted that the Principal and the Staff Member collected this information and disclosed it to PN's insurer. In doing so they exceeded the limits of both of their obligations with regard to PN's workplace injury. PN submitted that the decision to disclose matters contained in those records and notes to the insurer was based on irrelevant considerations. They did not directly relate to PN's workplace injury.

111 Respondent’s submissions in relation to Complaints S4 and S5: The respondent says that the incident at a faculty meeting on 25 November 2003 was a reoccurrence of the kind of behaviour that PN said had caused her initial injury and it that obviously jeopardised PN's Return to Work Program. As the most senior representative of the respondent at the School, it was appropriate for the Principal to talk with staff present at the meeting to gather information about whether the respondent and/or PN were complying with their obligations under the WIMWCA. This was the Principal’s understanding of her obligations. PN also expected that someone from the respondent should investigate her allegations of bullying, although she did not expect the Principal to conduct the investigation.

112 The respondent also referred to its occupational health and safety (“OH&S”) obligations to PN, to ensure that she worked in a safe environment. PN had complained to the School's OH&S Committee about her exposure to bullying on 18 November 2003 and asked the School to protect her from the aggressive behaviour of the Head Teacher. The Committee decided to deal with bullying issues through the Return to Work Plan and the regular meetings contemplated by that plan.

113 On receiving a complaint of a repeated bullying incident, the respondent had obligations under the WIMWCA and the Occupational Health and Safety Act 2000 (“the OH&S Act”) to consider the complaint. An essential part of considering whether a breach of either statutory obligation had occurred was to gather information about the circumstances in which the alleged bullying had occurred. The Principal was the most senior member of the respondent in the School, with the responsibility for OH&S issues at the School and the day-to-day implementation of PN's Return to Work Plan. Talking to staff about their recollections of the faculty meeting was something that was necessarily implied or reasonably contemplated by that legislation. Therefore, her actions were not a breach of the PPIP Act: section 25(b).

114 In relation to the S5 Compliant, the Principal, gave evidence that she had no recollection of having seen the Staff Member’s fax to RIM or knowing that the Staff Member would attach the notes to her fax. The Staff Member said that she told the Principal she would write to RIM to formally relinquish her role as alternate supervisor but did not discuss with the Principal what she was going to say.

Complaint T1

115 Complaint T1 related to the conduct of the Staff Member, that the Rehabilitation Provider recorded as having occurred between herself and the Staff Member in a report dated 14 November 2003. The Staff Member’s evidence was that she did not recall making those statements.

116 Applicant’s submissions in relation to T1 PN submitted that the Staff Member engaged in activities and made comments on matters that exceeded her role as facilitator between PN and the Head of Mathematics. The Staff Member was not asked to collect information about PN’s conduct and report her observations and opinions to PN’s insurer. PN therefore said that the Staff Member’s conduct could not be “lawful conduct” under either the PPIPA or the WIMWCA. PN contended that the issue of PN's compliance with an injury management plan, as defined in section 42 of the WIMACA, is wholly separate to any activities undertaken by the Staff Member for the reasons already stated.

117 PN submitted that the respondent is not protected by section 18(1)(a) of the PPIPA, as neither the Staff Member's disclosure relating to PN's OH&S report dealing with PN's concerns about exacerbating her workplace injury, nor the disclosure of her own observations and opinions regarding PN's comments at the Teacher's Federation Meeting were directly related to the "purpose for which the information was collected", nor would the agency have "no reason to believe that the individual concerned would object to the disclosure."

118 PN also contended that the agency - objectively or otherwise - did not have "no reason" to believe that she would not consent to the disclosure of such information to the insurer for the very reasons already stated in this paragraph. This was said to be another example of the Staff Member exceeding the limits of her obligations with regard to PN and any reasonable assessment of the Staff Member's actions, in the light of her actual obligations, would lead to the same conclusion.

119 Respondents submissions in relation to T1 The respondent says that the conduct of the Staff Member was not in breach of sections 9, 10, 13, 14, 15, 17, or 18 of the PPIP Act because the Staff Member’s conduct was lawfully authorised or non-compliance is otherwise permitted by the WIMWCA and the WCA and the Return to Work Plan created under the WlMWCA.

120 Section 46 of the WIMWCA requires an employer to develop an injury management plan for a worker. An injury management plan is defined in section 42 as meaning "a plan for coordinating and managing those aspects of injury management that concern the treatment, rehabilitation and retraining of an injured worker, for the purpose of achieving a timely, safe and durable return to work for the worker." The injured worker must also comply with the injury management plan in accordance with section 47 of the WIMWCA. If the worker does not comply with the Return to Work Plan after being requested to do so by their insurer, their weekly compensation payments can be terminated under section 57 of the WIMWCA. GIO's evidence is that it relies on the progress reports of the rehabilitation provider to assess whether the worker is meeting their return to work obligations.

121 The Return to Work Plan was an injury management plan as required by the WIMWCA. Both the respondent and PN were therefore required to comply with the plan to achieve a timely, safe and durable return to work for PN. The respondent refers to Point 4 of the Plan which contemplated weekly meetings involving PN, her support person, the alternate supervisor and the staff welfare officer to review how the management arrangements were progressing. The respondent submitted that the plan plainly contemplated and authorised the disclosure of personal information about PN for that purpose and between those individuals.

122 The Staff Member’s evidence was that contemplated weekly meetings did not occur. The Staff Member had concerns that PN was not following the spirit of the Return to Work program. Her evidence was that had they occurred, she would have used the meetings to raise those concerns but instead she had raised them in her telephone calls to the Rehabilitation Provider.

123 The complaint to the OH&S Committee suggested that PN's rehabilitation was not proving to be effective. Indeed, PN said in her letter that "My present situation is holding me back and I am not making any progress.”

124 The respondent says that the WIMWCA and the Return to Work Plan developed under that Act necessarily implied or reasonably contemplated contact between the Staff Member and the Rehabilitation Provider and the exchange of personal information about PN's progress with the Return to Work Plan at the School. The scheme established by the WIMWCA is premised on the expectation that the respondent would pass on information of this kind to PN's rehabilitation provider. The respondent says that as such, the Staff Member’s conversations with the Rehabilitation Provider were not in breach of sections 9, 30, 13, 14, 15, 17, or 18 of the PPIP Act by reason of section 25(b).

125 Collection In relation to the contention regarding the collection of PN’s personal information, the Staff Member advised the Rehabilitation Provider that that PN had approached the OH&S Committee, and that PN had made remarks at the Teacher's Federation Meeting which were unsettling to other staff. The respondent says that the Staff Member was present at both of those meetings so she was aware of PN’s comments from her own observations.

126 The respondent says that PN's complaint to the OH&S Committee was an unsolicited complaint made by PN to the Committee. As such, there was no "collection" of that information by the respondent and sections 8 to 11 do not apply.

127 The respondent says that The Teachers Federation, including its local branches, is a separate legal entity and not a "public sector agency" within the meaning of section 3(1) of the PPIP Act. The comments made at that meeting are, therefore, not subject to the PPIP Act. The respondent says that it is not responsible for the collection of information at that meeting. The respondent also says that the information that the Staff Member relayed rested entirely in her own mind until recorded by the Rehabilitation Provider. Accordingly, the respondent submits that the only organisation that collected the information was the Rehabilitation Provider. The Rehabilitation Provider is a private body not regulated by the PPIP Act: TA v Department of Education and Training [2006] NSWADT 246.

128 Storage The respondent submits that the comments made by the Staff Member to the Rehabilitation Provider were verbal comments and no issue as to storage arises.

129 Use The respondent submits that a "use" of information concerns the way that information is dealt with within an agency. PN's complaint about the Staff Member’s conversation with the Rehabilitation Provider concerns the conveying of the information to an external body. The respondent submits that, therefore, the facts do not establish a "use" for the purposes of sections 16 and 17 of the PPIP Act.

130 Disclosure The respondent says that, in relaying the complaint that PN had made to the OH&S Committee, the Staff Member’s actions were excused by virtue of section 18(1)(a). PN had written to the Committee, saying that she was concerned that she was going to re-injure herself because of the continued bullying at the School. She asked the Committee to take the necessary steps to ensure that the issues that she described were resolved. The Committee decided that it would refer PN’s concerns to RIM. The respondent submits that in writing to the OH&S Committee and raising the issue of a reoccurrence of her workplace injury, PN should have expected that her complaint would be disclosed to RIM. The response was certainly consistent with the purpose for which the information was received by the respondent.

131 In addition, PN is reasonably likely to have been aware (or should have been aware) that when she complained that her rehabilitation plan was not progressing effectively, her concerns would be raised with the workers compensation provider. In response to questions asked in cross examination, PN suggested that she had wanted her complaint to be the subject of an independent investigation by the OH&S Committee itself. When asked whether it was for the Committee to decide what steps it was going to take, PN responded "I don't know." The respondent submitted that this response is consistent with PN's refusal to accept that her complaints may need to be assessed on their merits and that her views as to how matters should proceed would not always be adopted by the respondent. The respondent submitted that if PN had genuinely turned her mind to the question, she would have recognised that the Committee was likely to consider forwarding her complaint to RIM for its review.

132 In the alternative, the respondent submitted that section 18(1)(b) must incorporate an aspect of objectivity. The phrase "the individual concerned is reasonably likely to be aware" should be construed as a reference to a reasonable individual in PN's situation. It is submitted that a person in PN's situation, when making a complaint to a school's OH&S Committee, would expect that if notice were given that a workplace injury threatened to reoccur, despite a rehabilitation program being in place, that notice would be passed on to the rehabilitation provider. The respondent submitted that section 18(1)(b) excuses this disclosure.

133 PN also complained about the disclosure of the information concerning her comments at the Teacher’s Federation meeting. PN's evidence is that her depression resulted from her workplace stressors and that it occurred against a complex factual background. PN gave detailed evidence of what she considered the background to be.

134 The proposal to nominate PN for transfer to another school was part of the background to that matter. The nominated transfer took place in December 2002. PN appealed the transfer. Shortly after appealing the transfer, at the beginning of the following school year, PN filed a workers’ compensation claim, because of workplace stressors. The transfer was overturned. PN returned to the School on a part-time basis on 20 October 2003. PN raised this issue at the Teacher’s Federation meeting on 14 November 2003. She asserted that the transfer process had in fact been part of a process of victimisation. From these comments, the Staff Member perceived that PN's anxiety and sense of persecution had continued unabated. The respondent submitted that this was relevant to the question of whether PN’s Return to Work Plan was and would be successful. It argued that the disclosure of this information was properly connected to the way in which PN's claim was progressed and was therefore covered by PN's consent form signed on 21 February 2003. It says that the disclosure was therefore excused by section 18(1)(b).

135 PN appears to complain that the identifying of her as a member of the Teacher's Federation was a breach of section 19 of the PPIP Act. However, the respondent submitted that a "disclosure" of information can only occur where the person to whom the information is being communicated is not already aware of that information. The Return to Work Plan refers at several places to the involvement of a Federation representative. The respondent says that RIM was therefore already aware that PN was a Teacher’s Federation member, and therefore communicating information about her membership of the Federation did not amount to a disclosure.

168 Section 25 of the PPIP Act may excuse non-compliance with sections 9,10, 13, 14, 15, 17 or 18. It provides exemptions where non-compliance is authorised, required, permitted, implied or contemplated by another law. In MT (GD) at paragraph [83], the Appeal Panel held that “any other law” in section 25(b) includes the common law. Section 25 has more often been found relevant in relation to positive statutory requirements placed on agencies to disclose or use information in a particular way.

169 In NZ v Health Care Complaints Commission [2006] NSWADT 111, NZ alleged that the respondent Commission had disclosed her complaint to the person about whom the complaint related in breach of section18 of the PPIP Act. The Commission relied on section 16(1) of the Health Care Complaints Act 1993 which provided that the Commission 'must give written notice of the making of complaint, the nature of the complaint and the identity of the complainant to the person against whom the complaint is made.' The Tribunal also noted section 16(4) which allowed the Commission not to give notice under section 16(1) in certain circumstances. The Tribunal’s President said at paragraph [35]:

[Section 16(4)] provides the Commissioner with a power not to proceed in the usual way. Whether the Commissioner should, or should not, have exercised this power in the circumstances is, in my view, not a matter that the Tribunal need inquire into. Section 25(a) deals with circumstances where an agency is ‘authorised’ or ‘required’ to disclose personal information. At the least, this was a situation where the agency had the relevant authorisation. That is all the Tribunal needs to address in order to reach a conclusion as to compliance with the Privacy Act.

170 NZ v Health Care Complaints Commission was the subject of an appeal to the Appeal Panel. The Appeal Panel did not disturb the Tribunal's findings cited above: see NZ v Health Care Complaints Commission [2006] NSWADTAP 56 at paragraphs [23] – [24].

171 In MY v Director General, Department of Community Services [2004] NSWADT 203, I considered whether section 248 of the Children and Young Persons (Care and Protection) Act 1998 provided an exemption to sections 13, 14 and 15 of the Privacy Act. Section 248 allowed the respondent Department to collect information relating to the safety, welfare and wellbeing of a child or young person from a range of sources. At paragraph [26]:

Children and Young Persons (Care and Protection) Act

172 In JS v Snowy River Shire Council(No 2) [2009] NSWADT 210 I considered the relationship between the PPIP Act and the Local Government Act 1993. At paragraph [50] – [54] I observed:

50 It is not in dispute that the complaint contains 'personal information' as defined in the Privacy Act. It contains information or an opinion about an individual whose identity is apparent. Section 18 of the Privacy Act places limits the disclosure of personal information by agencies. The Local Government Act provides for access to specified documents held by local councils. Thus, there is overlap between these two Acts.

51 In my opinion, the complaint is a document that falls within the scope of section 12(6) of the Local Government Act. While it may be arguable that the complaint is an ‘associated document’ with respect to the Tooheys’ development application and is therefore a public document pursuant to Section 12(1) of the Local Government Act, there can be no doubt that it is one of the Council’s ‘other documents’ for the purposes of section 12(6).

52 The Council’s discretion to refuse access to the complaint is therefore limited. There is no suggestion that the complaint falls within one of the exceptions set out in section 12(7) of the Local Government Act. The only circumstances in which the Council could have lawfully refused access to the complaint would have been if the Council was satisfied that allowing inspection of the document would, on balance, be contrary to the public interest.

53 Section 25 of the Privacy Act provides that a public sector agency is not required to comply with section 18 of the Privacy Act if non-compliance is ‘otherwise permitted (or is necessarily implied or reasonably contemplated)’ under an Act. The words ‘otherwise permitted (or is necessarily implied or reasonably contemplated)’ are extremely broad. For the reasons argued by the Council, it is my view that section 12(6) of the Local Government Act satisfies this provision.

54 I agree with the Council’s submissions that it was exempted from complying with section 18 of the Privacy Act with respect to the complaint. In my view, non-compliance is either permitted or is necessarily implied or reasonably contemplated by section 12(6) of the Local Government Act. The material relating to ‘the Open Meetings Act’ and ‘the Open Meetings Bill’ to which I have been referred supports this view.

173 In ZR v NSW Department of Education and Training [2009] NSWADT 84, the Tribunal considered whether disclosure of information by a school, to a school Parents and Citizens’ Association was part of the dialogue permitted by section 116 of the Education Act 1990. Pearson JM held at paragraph [47] that this

ZR v Director General, New South Wales Department of Education and Training

Freedom of Information Act

WD v Randwick City Council (GD)

Director General, Department of Education and Training v MT

Education Act

174 The respondent relies upon section 25, in answer to all of PN’s claims, by reference to its obligations under the WIMCA.

Complaint S1

175 Complaint S1 is concerned with a comment the Principal made on a workplace injury notification form. PN made a workers compensation claim for “depression due to workplace difficulties”.

176 PN submitted that the respondent breached section 8 by ‘collecting information’ for an unlawful purpose. The respondent however contends that information was not ‘collected’ because it was not ‘about’ PN, i.e. that the information was in fact information concerning grievances within the Mathematics Faculty at the School and their relationship to PN’s workplace injury claim. The respondent submitted that if the material complained about in S1 was personal information, it would also have to be personal information about other members of staff in the Mathematics Faculty.

177 I do not accept the respondent’s contention that information was not ‘about’ PN. In my view, the circumstances in which the Principal made the comment make it apparent that the comment was about PN and was a comment in regard to why the Principal considered that PN’s claim questionable.

178 In NX v Office of the Director of Public Prosecutions [2005] NSWADT 74, I considered the meaning of the words “lawful purpose” in section 8 of the PPIP Act. At paragraph [22] I accepted the submission that in the context of section 8 of the PPIP Act, "lawful purpose" should be interpreted to mean a purpose that is not forbidden, rather than positively authorised, by law. At paragraph [232] I said:

23 Under the second limb of section 8 of the PPIP Act, the question is whether the collection of the criminal history record was by "unlawful means". The term "unlawful means" is not defined in the PPIP Act. The Oxford English Dictionary defines "unlawful" to mean, "contrary to law; prohibited by law; illegal".

179 Collecting information for workers compensation purposes is not forbidden by the general law and provision of some information is positively required by section 44(2) of the WIMWCA Act. In my view, the requirement of section 8(1)(a) is also satisfied in that the lawful purpose was “directly related to a function or activity of the agency”. The relevant function of the agency is to comply with its workers compensation obligations. Collection of the information about the circumstances in which an alleged workplace injury had occurred is, in my opinion, reasonably necessary for that purpose.

180 However, I accept the respondent’s submission that what is recorded is the Principal’s observations derived from her knowledge of and involvement in the attempts to resolve PN’s complaints. There was no need for her to “collect” information from PN, because she was fully aware of the matters her own observations. For this reason, I agree with the respondent that the information was not ‘collected’. It follows that sections 8, 9, 10 and 11 of the PPIP Act can have no application to Complaint S1.

181 Even if I am wrong in this conclusion, I would accept the respondent’s submission that pursuant to section 25(a) of the PPIP Act it was authorised not to comply with sections 9,10, 13, 14, 15, 17 or 18 of the PPIP Act.

182 The Principal’s comments were made on PN’s Workplace Injury Notification form pursuant to section 44(2) of the WIMWCA. Section 44(2) of the WIMWCA required the respondent to notify its insurer within 48 hours of becoming aware that a worker received a significant workplace injury. The Principal’s perception of the workplace difficulties was highly relevant to the assessment of PN’s workers’ compensation claim and was entirely consistent with the purpose of the document as a whole. PN characterised her injury in the Workplace Injury Form as “depression due to workplace difficulties”. In those circumstances, “workplace difficulties” were directly relevant to the assessment of PN’s claim and were consistent with the purpose of the document as a whole.

183 Section 16 of the PPIP Act provides that an agency must check the accuracy of the personal information before it is used. I agree with the respondent that there was no ‘use’ of the Complaint S1 for the purposes of section 16. The Principal completed the form in order to notify the insurer. In any event, it is my view that the steps taken by the Principal were reasonable in the circumstances given the nature of the alleged injury, the timeframe for the provision of the employer’s notification and the fact that the notification invited the provision of an employer’s opinion.

184 It follows that PN’s application in regard to Complaint S1 should be dismissed.

Complaint S2

185 Complaint S2 relates to two comments by the Principal on the Employer’s Report of Injury Form completed on 27 February 2003 to the insurer and the rehabilitation support officer. PN complained about the Principal’s writing of previous injuries being “on going conflict” and that the present injury was “part of a complex, ongoing situation”.

186 For the same reasons given in regard to Complaint S1 it is my view that no breach of section 8 of the PPIP Act has been established. I agree with the respondent that it did not collect this information “about PN”. Also, for the same reasons given in regard to Complaint S1 I agree with the respondent that pursuant to section 25 of the PPIP Act, non compliance with sections 9, 10, 13, 14, 15, 17, and 18 of the PPIP Act was authorised or non compliance was otherwise permitted by the WIMCWA and the WCA. For the reasons given in relation to Complaint S1 the respondent’s submissions are accepted.

187 Sections 9A and 11A of the WCA restrict an employer’s liability for workers’ compensation in relation to psychological injury. Employment must be a substantial contributing factor to the injury by reference to matters including:

(b) the nature of the work performed and the particular tasks of that work,

(c) the duration of the employment,

(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,

(e) the worker’s state of health before the injury and the existence of any hereditary risks,

(f) the worker’s lifestyle and his or her activities outside the workplace.

188 Bys 11A of the WCA, liability is excluded in relation to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal or provision of employment benefits to workers. An assessment of liability in the case of psychological injury requires assessment of all the circumstances of the injury. The employer’s perspective is necessary to conduct the workers compensation insurer’s assessment of its liability. In my view, it follows that the Principal’s comments were lawfully authorised or reasonably contemplated by the WCA.

189 For the same reasons given in regard to Complaint S1 it is my view that no breach of section 16 of the PPIP Act has been established, as there was no ‘use’ of the information.

190 It follows that PN’s application in regard to Complaint S2 should be dismissed.

Complaint S3

191 Complaint S3 concerns the comments of the Principal recorded in a document prepared by the organisation “Claims Intervention”. Claims Intervention is a contractor that the GIO uses to assess issues of liability for injury. PN complains that the Principal made a number of fabricated, unsubstantiated statements to the workers compensation investigator.

192 I agree with the respondent that it did not collect this information “about PN”. The collection of the information was by the investigator. Until the investigator recorded the observations, they were outside the scope of the PPIP Act. Information located in the mind of the Principal and then related to Claims Intervention is not information held by the respondent. As the investigator was not an officer of a public sector agency, her recording of the Principal’s observations could not involve a breach of the PPIP Act: TA v Department of Education and Training [2006] NSWADT 246 at [25]; Vice Chancellor Macquarie University v FM [2005] NSWCA 192, [28], [40], [42]-[43].

193 The investigator gave evidence that an investigator interviews the worker, the employer and other persons who may have relevant information.

194 As discussed above, for the purposes of the assessment of workers compensation claims under sections 9A and 11A of the WCA, a claims investigator must be entitled to seek the opinion of the employee’s employer, in the investigation of all the circumstances of the injury. The employer’s perspective is necessary to conduct the workers compensation insurer’s assessment of its liability. I accept the respondent’s submission that as the investigator asked the Principal to participate in the interview it can be inferred that the Principal’s comments were made in the context of the respondent’s obligation to assist its insurer in assessing liability for PN’s alleged psychological injury. In my view, the Principal’s comments were lawfully authorised or reasonably contemplated by the WCA. Section 25 excuses the respondent from compliance with sections 9, 10, 13, 14, 15, 17, and 18 of the PPIP Act.

195 For the same reasons given in regard to Complaint S1 it is my view that no breach of section 16 of the PPIP Act has been established, as there was no ‘use’ of the information.

196 In relation to the claimed contravention of section 19, I accept the Principal’s evidence that her reference to “cultural difference” related to the fact that PN was used to a different and more structured workplace culture. A comment about “workplace cultural differences” is not information about PN’s ethnic or racial origin and there could be no breach of section 19. In any event, for a comment to amount to a disclosure, it must reveal information that was not already known to the person to whom the statement was made. It is my view that no breach of section 19 of the PPIP Act has been established, as there was no ‘disclosure’ of the information.

197 It follows that PN’s application in regard to Complaint S3 should be dismissed.

Complaints S4 and S5

198 After an incident at a faculty meeting at the School on 25 November 2003, the Principal interviewed a number of members of staff. The notes of those interviews were ultimately submitted to the Rehabilitation Provider.

199 At the time of the faculty meeting, PN was at the School as part of a Return to Work Program, developed under section 52 of the WIMWCA. Both PN and the respondent were required to comply with this Return to Work Program. Although she was not at the faculty meeting, the Principal was informed that there had been a difficulty at the meeting and she went to the Maths staff room. The Principal then spoke with PN, who claimed that she had been bullied again at the faculty meeting. This was the context in which the Principal interviewed various members of staff. The Principal made notes of these interviews. The notes contained personal information of PN and subsequently the Principal provided a copy of those notes to the Staff Member who was PN’s alternative head teacher. The Staff Member had initialled a copy of the notes as being an accurate record of what was said. The Principal authorised the Staff Member to forward these notes to the Rehabilitation Provider.

200 The respondent contends that PN’s allegation of repeated workplace bullying brought into play the respondent’s obligations under both the WIMWCA and the OH&S Act. I agree with that contention. An essential part of considering whether a breach of either statutory obligation had occurred was to gather information about the circumstances in which the alleged bullying had occurred. The Principal was the most senior officer of the respondent in the School. She had responsibility for OH&S issues at the School and the day-to-day implementation of PN's Return to Work Plan. Talking to staff about their recollections of the faculty meeting was something that was necessarily implied or reasonably contemplated by that legislation. In my view, the information was collected for a lawful purpose that was directly related to the respondent’s obligations under both the WIMWCA and the OH&S Act, and the collection of the information was reasonably necessary for that purpose.

201 It is my view that no breach of section 8 of the PPIP Act has been established. I also agree with the respondent that pursuant to section 25 of the PPIP Act, non compliance with sections 9, 10, 13, 14, 15, 17, and 18 of the PPIP Act was authorised or non compliance was otherwise permitted by the WIMWCA and the OH&S Act.

202 It is also my view that the Staff Member’s role as PN’s alternative head teacher cannot be categorised in the restricted manner that PN has asserted. The Staff Member’s role was integral to the implementation of PN's Return to Work Plan. It is my view that the Principal was entitled to delegate some of her administrative duties and therefore it was reasonable to delegate some communication with the Rehabilitation Provider to the Staff Member.

203 I accept the evidence that the Staff Member proposed to relinquish her role as PN's alternate supervisor in regard to the Return to Work plan created under the WlMWCA. In my view it is reasonably contemplated that she would communication with the Rehabilitation Provider in regard to that issue and that in doing so she would provide an explanation for her decision to relinquish her role. For this reason it is my view that non compliance the Staff Member with sections 9, 10, 13, 14, 15, 17, and 18 of the PPIP Act was authorised or non compliance by was otherwise permitted by the WIMWCA.

204 I do not agree that any inference can be drawn that a breach of section 12 of the PPIP Act has been established.

205 For the same reasons given in regard to Complaint S1 it is my view that no breach of section 16 of the PPIP Act has been established, as there was no ‘use’ of the information. The notes were passed on to the Staff Member who acted as a conduit to forward them to the Rehabilitation Provider. This is not a ‘use’ for the purposes of section 16 of the PPIP Act.

206 It follows that PN’s applications in regard to Complaint S4 and S5 should be dismissed.

Complaint T1

207 Complaint T1 concerns the conduct of the Staff Member, recorded by the Rehabilitation Provider in a report dated 14 November 2003. The Staff Member gave evidence that she did not recall making the statements that were attributed to her. PN argues that the actions of the Staff Member were not relevant to PN’s compliance with her section 42 WIMWCA injury management plan. The respondent says that the conduct of the Staff Member was not in breach of sections 9, 10, 13, 14, 15, 17, or 18 of the PPIP Act because the Staff Member’s conduct was lawfully authorised or non-compliance is otherwise permitted by the WIMWCA and the WCA and the Return to Work Plan created under the WlMWCA.

208 Section 46 of the WIMWCA requires an employer to develop an injury management plan for a worker. An injury management plan is defined in section 42 as meaning "a plan for coordinating and managing those aspects of injury management that concern the treatment, rehabilitation and retraining of an injured worker, for the purpose of achieving a timely, safe and durable return to work for the worker." The injured worker must also comply with the injury management plan in accordance with section 47 of the WIMWCA. If the worker does not comply with the Return to Work Plan after being requested to do so by their insurer, their weekly compensation payments can be terminated under section 57 of the WIMWCA. GIO's evidence is that it relies on the progress reports of the rehabilitation provider to assess whether the worker is meeting their return to work obligations.

209 The Return to Work Plan was an injury management plan as required by the WIMWCA. Both the respondent and PN were therefore required to comply with the plan to achieve a timely, safe and durable return to work for PN. Point 4 of the plan contemplated weekly meetings involving PN, her support person, the alternate supervisor and the staff welfare officer to review how the management arrangements were progressing. The Staff Member’s evidence was that these meetings did not occur.

210 The Staff Member had concerns that PN was not following the spirit of the Return to Work program. I accept that these are issues that would have been raised at the weekly meetings had they occurred. In my view, it is reasonably contemplated that the Staff Member would communication her concerns to the Rehabilitation Provider. In the absence of the weekly meetings as a forum to raise those issues, it is reasonably contemplated that the Staff Member would communicate directly with the Rehabilitation Provider.

211 I agree with the respondent that PN's complaint to the OH&S Committee suggested that PN's rehabilitation was not proving to be effective.

212 The WIMWCA and the Return to Work Plan developed under that Act necessarily implied or reasonably contemplated contact between the Staff Member and the Rehabilitation Provider and the exchange of personal information about PN's progress with the Return to Work Plan at the School. The scheme established by the WIMWCA is premised on the expectation that the respondent would pass on information of this kind to PN's Rehabilitation Provider. As such, the Staff Member’s conversations with the Rehabilitation Provider were not in breach of sections 9, 30, 13, 14, 15, 17, or 18 of the PPIP Act by reason of section 25(b).

213 For the same reasons given above, it is my view that no breach of section 8, 12 or 16 of the PPIP Act has been established.

214 The applicant appears to complain that the identifying of her as a member of the Teacher's Federation was a breach of section 19 of the PPIP Act. However, it is clear that RIM was already aware that PN was a Federation member. As noted above, a "disclosure" can only occur where the person to whom the information is being communicated is not already aware of that information.

215 It is my view that no breach of section 19 of the PPIP Act has been established, as there was no ‘disclosure’ of the information.

216 It follows that PN’s applications in regard to Complaint T1should be dismissed.

Complaint T2

217 Complaint T2 concerns the fax sent by the Staff Member to the Rehabilitation Provider, summarising PN’s experience at the School.

218 I accept that the Return to Work Plan contemplated weekly meetings, which the Staff Member would attend, and that the Return to Work Plan contemplated the exchange of information between the participants. the Staff Member sent the fax to the Rehabilitation Provider to advise of the difficulties that were occurring in the Return to Work Program. The Staff Member's view was that the Return to Work Program was not progressing well and PN's evidence corroborated this to be the case. The Staff Member's view was stored in her mind until it was committed to paper. In my view it was not “collected” from anyone.

219 PN's consent given on 21 February 2003 allowed the GIO to collect, from anyone including the respondent and its employees, "any medical and/or factual information as considered appropriate in connection with the claim”. In my view, the information that the Staff Member provided was factual information in connection with the claim and it therefore falls within the scope of PN's consent. In my opinion, PN consented to the disclosure of information relating to her workers compensation claim and this must necessarily have included her rehabilitation and return to work. The faxed information was sent for a purpose directly connected to PN's workers compensation claim.

220 For the same reasons given above, it is my view that no breach of the PPIP Act has been established.

221 It follows that PN’s applications in regard to Complaint T2 should be dismissed.

Order

The Tribunal finds that the Department Of Education And Training has not contravened the Privacy and Personal Information Protection Act 1998.

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Citations

PN v Department of Education and Training [2009] NSWADT 287

Most Recent Citation

PN v Department of Education and Training [2010] NSWADTAP 59

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Cases Cited

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Statutory Material Cited

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PN v Department of Education & Training [2006] NSWADT 122

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CITATION:	PN v Department of Education and Training [2009] NSWADT 287
DIVISION:	General Division
PARTIES:	APPLICANT PN RESPONDENT Department Of Education and Training
FILE NUMBER:	053113, 053114
HEARING DATES:	18 February 2008, 6 May 2008 and 13 May 2008
SUBMISSIONS CLOSED:	8 June 2009
DATE OF DECISION:	23 November 2009
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Privacy - information protection principle - personal information – collection- – use - disclosure to third party
LEGISLATION CITED:	Privacy and Personal Information Act 1998 Administrative Decisions Tribunal Act 1997 Occupational Health and Safety Act 2000 Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998
CASES CITED:	Cooper Brookes v FCT (1981) 147 CLR 297 Crewdson v Central Sydney Area Health Service [2002] NSWCA 345 Department of Education and Training v MT [2005] NSWADTAP 77 Director General, Department of Education and Training v MT [2006] NSWCA 270 DO v University of New South Wales (GD) [2002] NSWADTAP 9 DO v University of New South Wales [2002] NSWADT 211 Ferns v Department of Corrective Services [2007] NSWADT 296 FH v Commissioner, New South Wales Department of Corrective Services [2003] NSWADT 73 FM v Macquarie University, [2003] NSWADT 78 GL v Director-General, Department of Education and Training [2003] NSWADT 166 H v Commissioner for Children and Young People [2001] NSWIRComm 256 HW v Director of Public Prosecutions (No 2) [2004] NSWADT 73 JD v Department of Health [2005] NSWADTAP 44 JD v Department of Health [2007] NSWADT 219 JS v Snowy River Shire Council (No 2) [2009] NSWADT 210 MT v Director General NSW Department of Education and Training [2004] NSWADT 194 MY v Director General, Department of Community Services [2004] NSWADT 203 Nakhal Nasar v State of New South Wales [2007] NSWCA 101 NS v Commissioner, Department of Corrective Services [2004] NSWADT 263 NX v Office of the Director of Public Prosecutions [2005] NSWADT 74 NZ v Department of Housing [2005] NSWADT 58 NZ v Health Care Complaints Commission [2006] NSWADT 111 NZ v Health Care Complaints Commission [2006] NSWADTAP 56 PN v Department of Education and Training [2006] NSWADT 122 Purvis v NSW (2003) 217 CLR 92 St Joseph’s Hospital Ltd v Correy (EOD) [2008] NSWADTAP 4 TA v Department of Education and Training [2006] NSWADT 246 Vice-Chancellor Macquarie University v FM [2005] NSWCA 192 WD v Randwick City Council (GD) [2007] NSWADTAP 58 WL v Randwick City Council [2007] NSWADTAP 58 ZR v Director General, New South Wales Department of Education and Training [2008] NSWADT 28 ZR v NSW Department of Education and Training [2009] NSWADT 84
REPRESENTATION:	APPLICANT L Goodchild, barrister RESPONDENT P Ginters, barrister A Johnson, solicitor
ORDERS:	The Tribunal finds that the Department Of Education And Training has not contravened the Privacy and Personal Information Protection Act 1998.