YK v Commissioner of Police, New South Wales Police

[2008] NSWADT 81

CITATION:	YK v Commissioner of Police, New South Wales Police [2008] NSWADT 81
DIVISION:	General Division
PARTIES:	APPLICANT A Slevin, barrister RESPONDENT D Hartman, solicitor
FILE NUMBER:	063356
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	7 January 2008
DATE OF DECISION:	13 March 2008
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Privacy - information protection principle - personal information - use
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Ombudsman Act 1974Police Act 1990 Police Regulation 2000 Privacy Personal Information Protection Act 1998
CASES CITED:	FM v Macquarie University [2002] NSWADT 78 GA v Commissioner of Police, NSW Police [2005] NSWADT 129 HW v Commissioner of Police, NSW Police Service & Anor [2003] NSWADT 214 NW v New South Wales Fire Brigades [2005] NSWADT 73 Vice Chancellor Macquarie University v FM (GD) [2003] NSWADTAP 43
REPRESENTATION:	APPLICANT A Slevin, barrister RESPONDENT D Hartman, solicitor
ORDERS:	1. On or before Thursday 3 April 2008 the parties to file and serve draft orders in regard to the progress of this application 2. The application is set down for further directions on Thursday 10 April 2008 at 10am.

REASONS FOR DECISION

Introduction

1 This is an application by YK pursuant to section 55 of the Privacy and Personal Information Protection Act 1998 (‘the PPIP Act’), seeking review of conduct by an officer of NSW Police in the course of his duties. The conduct in question occurred on 1 May 2004, and involved the disclosure of statements and other material concerning YK to his then employer, NSW Health. The statements and material concerned alleged child sexual assault offences committed by YK some years previously. These statements and material had been obtained/collected by the NSW Police in the course of a recent investigation into the allegations.

2 There is no dispute that the disclosure, the subject of this application, did in fact occur. Nor is it disputed that the disclosure was disclosure of ‘personal information’ about YK as defined in sub-section 4(1) of the PPIP Act.

3 However, the Commissioner asserted that the conduct of the NSW Police officer was not conduct that came within the information protection principle as set out in section 18 of the PPIP Act, because the conduct in question was conduct that was excluded from the operation of this provision by reason of:

(a) the exemption contained in section 27 of the PPIP Act, or

(b) the exemption contained in the Directions of the Privacy Commissioner made, 19 December 2003, pursuant to section 41 of the PPIP Act. These Directions related to the ‘Processing of Personal Information by Public Sector Agencies in Relation to their Investigative Functions’.

4 If the Commissioner’s contention is correct that would dispose of this application as the Commissioner would not be liable for the conduct in question. Accordingly, the parties agreed that this was an issue that the Tribunal was to determine as a preliminary matter. The parties also agreed that it should be determined on the papers.

The conduct and surrounding circumstances

5 It is necessary to briefly set out the circumstances, which led to the disclosure, on 1 May 2004, of the statements and material concerning YK’s personal information.

6 In early 2002, ‘A’, went to police to report that he had been sexually assaulted by YK when he was a child. He also alleged that the applicant had committed similar assaults on others. Shortly thereafter the NSW Police officer took ‘A’ to the local Community Health Centre to speak to a sexual assault counsellor. The counsellor, on becoming aware that YK was employed at a NSW hospital, reported the allegation to NSW Health, which he/she was required to do. After the counselling, the NSW Police officer took a formal statement from ‘A’ in regard to the allegations.

7 In September 2002, NSW Health wrote to NSW Police and requested that it be permitted to interview YK in regard to the allegations and for this purpose it requested a copy of ‘A’s’ statement. In the letter, NSW Health noted that YK had been relocated in an effort to minimise the risk to children and other vulnerable groups. NSW Police responded shortly thereafter and advised that a copy of ‘A’s’ statement could not be provided as it had the potential to compromise the investigation.

8 In February 2003, NSW Police wrote to NSW Health and confirmed that the investigation in regard to the allegations made about YK were continuing and noting that NSW Health was intending to have a conference with YK so as to inform him of the reasons for his changed employment conditions. In this letter, NSW Police requested that NSW Health only disclose very brief details about the investigation by NSW Police and not to disclose the identity of ‘A’ or any other victim or witness, in its conference with YK. The request was made in order to protect the integrity of the investigation and to ensure the safety of the witnesses.

9 Between May and September 2003, NSW Police obtained written statements from various witnesses in regard to the allegations.

10 In December 2003, NSW Health wrote to NSW Police seeking advice on the investigation so that NSW Health could meet its legislative responsibility ‘to conduct a risk assessment of [YK’s] employment status which takes account of the allegations, evidence and his response.’

11 In March 2004, NSW Police advised NSW Health that there was insufficient evidence to proceed against YK in regard to the allegations and that it was not able to provide the Employment Screening and Review Branch (‘ES&RB’) of NSW Health with information that would allow the Branch to contact and interview the informants.

12 In April 2004, the ES&RB of NSW Health wrote to the NSW Police requesting a copy of the Police brief and evidence that had been obtained in regard to the allegations that had been made against YK. This material was provided on 1 May 2004 under the cover of a letter. That letter stated the following:

‘…

In these circumstances, and taking into account your department’s investigative functions and the Services’ public safety and protection requirement, I believe it is appropriate that your department be provided this material, which I trust will be of assistance to your investigations.

However, as you would appreciate, the information provided by the Police Service cannot be supplied unconditionally or without limitation. In this regard it is imperative that the Department of Education and Training only use the material for the purpose of the department’s investigations, keep and maintain the material securely, and insure that the material is not inappropriately released, divulged or published.

If you are unable to meet the above requirements, I would ask that the material be returned to the Police Service immediately.

… '

13 It is the understanding of the Tribunal that these statements and material were provided without the identity of the victims being disclosed.

14 In January 2005, the ES&RB of NSW Health wrote to NSW Police advising that it had examined the material forwarded by NSW Police. It noted that this examination had been delayed due to the Ombudsman’s analysis of the statements. Having examined the material, the ES&RB had formed the view that it had an obligation to permit YK to answer the allegations and therefore needed to place these before YK in a summarised form. In May 2005, the ES&RB invited YK to attend an interview in regard to the allegation. At that interview, YK was shown the statements that ES&RB had been provided with from NSW Police.

15 YK has at all times denied the allegations.

Is the conduct exempt under section 27 of the PPIP Act?

The law

16 Sub-section 27(1) of the PPIP Act exempts the Independent Commission Against Corruption, the Police Service (NSW Police), the Police Integrity Commission and the NSW Crime Commission from compliance with the information protection principles contained in the PPIP Act. These principles are set out in Part 2, Division 1 of the PPIP Act and include the provision relating to disclosure. However, sub-section 27(2) provides that this exemption does not apply to the ‘administrative or educative’ functions of these agencies.

17 Section 27 relevantly provides as follows:

27 Exemption (ICAC, Police Service, PIC and NSW Crime Commission)

(1).Despite any other provision of this Act, ... , the Police Service, … are not required to comply with the information protection principles.

(2).However, the information protection principles do apply to the …, the Police Service, … in connection with the exercise of their administrative and educative functions.

18 The Tribunal has previously considered the operation of this exemption. In HW v Commissioner of Police, NSW Police Service & Anor [2003] NSWADT 214 at [25] the President said that section 27 sought “to draw a distinction between the core responsibility of the Police Service and its ‘administrative’ and ‘educative’ functions.” The President then went on to consider the functions of the Police Service as set out in section 6 of the Police Act 1990. He pointed out that there were three functions prescribed in that section, the first of which was to ‘provide police services for New South Wales’. His Honour referred to the definition of ‘Police Services’ as set out in that Act. These relevantly include ‘services by way of prevention and detection of crime, and the protection of persons from injury or death whether arising from criminal acts or any other ways.’ His Honour went on at [27] to say the following:
27 A broad interpretation of ‘administrative functions’ may be appropriate in a legislative scheme which does not otherwise compartmentalise the functions of a public sector agency … However in section 27 the Parliament has taken a compartmentalised approach to the functions of the law enforcements agencies mentioned. The division, as I see it, is as between the core responsibilities and those responsibilities, which are not part of the core responsibilities. In particular, the meaning of the word ‘administrative’ is to be read down so as not to embrace those core responsibilities. Similarly, an ‘educative’ responsibility which might on one view simply be a component of ‘administrative’ activities are to be seen as separate from ‘administrative’ responsibilities and again not fully part of the core responsibilities.”
19 In HW , the President was considering the conduct of a Police officer who had served on HW’s employer and the Health Care Complaints Commission a document that purported to be a subpoena issued by the Local Court. The document had been prepared by the Police officer so as to obtain documents from these agencies for the purposes of answering an anticipated defence by HW, to criminal charges laid against him, which were being tried before the Local Court. It was accepted that the purported subpoena was invalid. However, the issue before the tribunal was whether the conduct in question related to the core activities of the Police Service or its administrative functions. The President found that the essence of the conduct was conduct to support a prosecution, which related to the core activities of the Police Service and not its administrative functions. That is, it was ‘work of an investigative nature (though not connected with the crime itself) and related to the Police Service’s core responsibilities.’(see at [28]).

20 At [29] the President said that ‘administrative’ in sub-section 27(2) could not be used:

… to refer to the entirety of the administrative activity of the Police Service, which includes the investigation of crime. Within context, I am satisfied that it is intended to have a narrower compass going to those aspects of the operation of the agency that, as I see it, do not directly involve the carrying out of the core responsibilities. As I see it, ‘administrative’ when used in contra distinction to section 27(1) and alongside the term ‘educative’ seeks to refer to those activities of the Police Service that have to do with providing administrative support for the conduct of its core responsibilities.’
21 At [30] the President acknowledged that there may be areas of the Police Service where the characterisation of the activity in terms of core/administrative/educative may vary depending on the context that has given rise to the conduct in issue and went on to provide the following example:
…(the handling of criminal records may provide an example where in some instances the disclosures occur in the course of the investigation of crime, while in other instances they are done administratively, for example; for background checks on prospective employees. The exception in section 27(2) may also cover licensing responsibilities vested in the Commissioner, such as for firearms licensing and security industry licensing. …
22 The decision of the President in HW was followed by Deputy President Magistrate Hennessy in GA v Commissioner of Police, NSW Police [2005] NSWADT 129. In that application, GA sought review of conduct by NSW Police in regard to the collection, use and disclosure of personal information about him on the services Computerised Operation Policing System (‘COPS’) data base. In that decision, Deputy President Magistrate Hennessy, rejected GA’s contention that the terms ‘administrative’ should be given the same meaning as the words ‘administrative functions’ is given in section 39 of the Freedom of Information Act 1989: see at [17]. Her Honour went on to say at [18] that she accepted that the information recorded in the COPS system was directly and indirectly used for the purpose of preventing and prosecuting crimes.

Consideration

23 The Commissioner contends that the disclosure by the NSW Police officer to the ES&RB of NSW Health related to the NSW Police Service core responsibilities of ‘prevention of crime and protection of persons from injury’ as set out in sub-section 6(3) of the Police Act 1990. That is, it was not supplied in response to an employment background check. In support of this contention the Commissioner relied on two statements of evidence of Commander Kim Christine McKay dated 21 December 2006 and 7 June 2007.

24 The Commissioner had initially argued that the disclosure was authorised pursuant to regulation 46(3) of the Police Regulation 2000 (confidential information). This was not pressed however. I also agree with the Commissioner’s position that this particular provision is of no relevance to this application.

25 YK contended that the disclosure did fall within the ‘administrative’ functions of NSW Police in that it was provided for the purpose of his employment.

26 In my opinion, the essential issue as to whether the disclosure in this application fell within the ‘core’ responsibilities of the NSW Police, is ultimately a question of fact having regard to the circumstances in which the disclosure was made.

27 What is clear from the terms of the 1 May 2004 letter from the NSW Police to the ES&RB of NSW Health is that the information was provided so as to assist the ES&RB in its investigations of the allegations. Unlike the NSW Police investigation, the ES&RB were not seeking to establish whether there was evidence on which to charge YK with an offence, its investigation was for the purpose of conducting a ‘risk assessment’ in regard to YK’s employment. That risk assessment being based on the same allegations on which the NSW Police investigation was based. However, the fact that the underlying allegations are the same does not mean that the provision of the statements of the NSW Police investigation also arose from that investigation.

28 There is no question that the NSW Police investigation fell within the core responsibilities of the Police. However, there is no provision in the Police Act 2000, or the Ombudsman Act 1974 requiring NSW Police to report allegations of criminal conduct made against a government employee, to the person’s employer or the Ombudsman. Nor is there a requirement to inform the Ombudsman or the agency of the outcome of any investigation. Yet in regard to allegations of child sexual misconduct by an employee of nominated agencies (example NSW Health), these agencies are required to report these allegations to the Ombudsman under section 25C of the Ombudsman Act 1974. That section is contained in Part 3A of the Ombudsman Act 1974, the purpose of which is to provide for child protection and to ensure that allegations are investigated appropriately either by the Ombudsman or the relevant agency and that findings in regard to such investigations are acted upon in the appropriate way. These provisions do not apply to allegations that are made to the NSW Police. The reasons for this may be obvious as NSW Police have express powers and functions to investigate these allegations and to prosecute if an allegation can be proved to the criminal standard of proof …

29 In this application, it was through NSW Health that the Ombudsman became aware of the allegation. The Ombudsman wrote to NSW Police in March 2003, requesting information about the allegations and when NSW Police anticipated the investigation would be completed. This request was made under the general investigatory powers of the Ombudsman pursuant to section 13AA of the Ombudsman Act 1974. It would appear that NSW Police responded to the Ombudsman’s request. The response appears to have included a brief outline of the allegations that had been made and the Ombudsman was requested not be disclosed to YK, at that stage, the details of the allegations or the investigation.

30 At the time the disclosure was made to NSW Health, the NSW Police had completed its investigations into the allegations. These investigations resulted in the NSW Police deciding it did not have sufficient evidence on which to charge YK. It is apparent from the terms of the letter of 1 May 2004 that the NSW Police were providing this information to assist the ES&RB of NSW Health in their inquiry or risk assessment in regard to YK’s employment. The circumstances may have been considered to be appropriate for this information to be provided but it was not provided to assist NSW Police in their investigation of the allegations.

31 This, of course did not prevent NSW Health from considering the same allegations for the purpose of their risk assessment as different considerations apply. This includes a lower level of satisfaction in regard to the allegations. The circumstances may also have been appropriate for NSW Police to provide the statements they had obtained in the course of their investigations. However, this does not mean that the NSW Police core responsibilities of ‘prevention of crime and protection of persons from injury’, as set out in the Police Act 1990 are to be construed to extend that far. If accepted this construction would arguably be of general application to all allegations investigated by NSW Police. Such a wide construction cannot have been the intended.

32 It is difficult to see how, in this application the disclosure of the statements and material could have been for the purpose of preventing a crime as the alleged incidents had occurred many years ago. Nor were they alleged to have occurred during the course of YK’s employment. As mentioned above, the express words of the letter of 1 May 2004 also indicated that the purpose was to assist NSW Health in its inquires.

33 In my opinion, having regard to the relevant provisions of the Police Act 1990, section 27 of the PPIP Act and the circumstances in which the disclosure was made, the disclosure was made pursuant to the NSW Police ‘administrative’ functions. That is, the circumstances of disclosure are similar to that mentioned in HW, where the NSW Police provide details of a person’s criminal record to an agency. In this application the disclosure was only made following a request of NSW Health and then only after the NSW Police had completed its investigation. That is, in this application at the conclusion of its core responsibilities in regard to the allegations made by ‘A’. Hence the question remains whether the disclosure was one that was otherwise authorised under the provisions of the PPIP Act.

Is the conduct exempt by reason of the direction of the Privacy Commissioner made pursuant to s.41 of the PPIP Act?

The law

34 Section 41 of the PPIP Act relevantly provides as follows:

41 Exempting agencies from complying with principles and codes

(1) The Privacy Commissioner, with the approval of the Minister, may make a written direction that:

(a) a public sector agency is not required to comply with an information protection principle or a privacy code of practice, or

(b) …

(2) Any such direction has effect despite any other provision of this Act.

(3) …

35 On 1 May 2004, the Privacy Commissioner made a Direction, pursuant to section 41, in regard to the ‘Processing of Personal Information by Public Sector Agencies in Relation to their Investigative Functions’ That Direction relevantly provided as follows:
1. This direction is to apply to each public sector agency, as defined in Section 3 of the Privacy and Personal Information Protection Act 1998 (‘the PPIP Act’), which is listed in Schedule 2 of the Directions (relevant agency).

2. This direction applies to the collection, storage, use and disclosure of personal information for the purposes of the exercise by a relevant agency of its investigative functions.

3. …

4. A relevant agency need not comply with sub-sections 9, 10, 13, 14, 15, 17, 18 or 19(1) of the PPIP Act if non-compliance is reasonably necessary for the proper exercise of any of the agency’s investigative functions or its conduct of any lawful investigations.

5. …

6. For the purposes of this direction:

‘Investigation’ of a matter includes any examination of or any preliminary or other enquiry, including but not limited to a preliminary enquiry within the meaning of the Public Sector Management Act , into the matter. This includes matters where it is decided to take no further action in matters which arise by way of complaint or otherwise.

‘Investigation Functions’ of an agency refer to those functions that are directly related to a lawful investigation and that are necessary for the conduct of that law investigation;

‘Lawful Investigations’ means the investigations carried out by an agency under specific legislative authority or where the power to conduct the investigation is necessarily implied or reasonably contemplated under an Act or other law. …

36 There is no dispute that the NSW Police Service and NSW Health and the relevant Area Health Services are a ‘relevant agency’ for the purposes of the Direction.

37 On 3 November 2006, the Privacy Commissioner amended the above Direction by inserting a new clause 4A that provided as follows:

‘4A A relevant agency need not comply with sections 18 and 19(1) of the PPIP Act if non compliance is reasonably necessary to assist another relevant agency exercising investigative functions or conducting a lawful investigation.’
Consideration

38 It was the Commissioner’s contention that NSW Police in disclosing the statements to NSW Health were doing so in accordance with paragraph 4. That is, its disclosure was reasonably necessary for the proper exercise of the NSW Health’s investigative functions in regard to its risk assessment of YK’s on going employment in light of the allegations. The Commissioner has relied on the decision of the Appeal Panel in Vice-Chancellor, Macquarie University v FM (GD) [2003] NSWADTAP 43. On the basis of this decision it is contended that clause 4A had only been inserted into the above Direction to remove any doubt about the direction covering disclosures from one agency to another agency in regard to that other agencies investigative functions.

39 YK on the other hand contends that clause 4 of the Direction has no application on the basis of a more recent decision of the President in NW v NSW Fire Brigades [2005] NSWADT 73. In the event the clause does apply, YK contends that the Commissioner had failed to establish that the investigation conducted by NSW Health was lawful, or that non-compliance had been reasonably necessary for the proper exercise of that investigation. In light of my findings it is unnecessary for me to consider the latter contentions of YK.

40 One of the several issues before the Appeal Panel in Vice Chancellor Macquarie University v FM (GD) [2003] NSWADTAP 43, was whether the alleged investigations of the agency, in that case the University of New South Wales (‘UNSW’), was a lawful investigation for the purpose of clause 4 of the above Direction. The conduct the subject of that application was the disclosure by officers of Macquarie University (‘Macquarie’) to officers of the UNSW in regard to FM’s time as a student with Macquarie. FM had enrolled to study at UNSW and the officers of that University contacted Macquarie to verify what he had disclosed in his application for enrolment. Deputy President Magistrate Hennessy had accepted the contention of Macquarie that clause 4 included the non-compliance by a relevant agency of the disclosure provision in section 18 of the PPIP Act where that disclosure is reasonably necessary for the proper exercise of another agency’s (that is UNSW) investigative functions: see FM v Macquarie University [2002] NSWADT 78 at [69]. However, Her Honour went on to find that in that case there was no legislative basis to support the investigation being conducted by UNSW: see at [69]. It was this latter finding which was the subject of appeal (see [114] to [117]), and in regard to that issue the Appeal Panel concluded at [117] as follows:

‘117 In our view the references in clause 4 to ‘the agency’s investigative functions’ covered what occurred here. We are satisfied that Macquarie was engaged in carrying out an investigative function in connection with the UNSW investigation.’
41 In NW v New South Wales Fire Brigades [2005] NSWADT 73, the President re-considered the proper construction of clause 4 of the Direction. In that application, NW, sought review of conduct of the NSW Fire Brigades in disclosing to the Council, where he was permanently employed, information about his part time employment with the Fire Brigades. An officer of the Council had contacted the Fire Brigades as he was investigating whether NW had been working with the Fire Brigades on days that he had indicated to the Council he was ill. His Honour’s re-consideration of the proper construction of clause 4 is found at [54] to [59] as follows:
‘54 Clause 4 begins with the words ‘a relevant agency’. The first limb of clause 4 then states that such an agency ‘need not comply’ with a listed IPP ‘if non-compliance is reasonably necessary for the proper exercise of any of the agency’s investigative functions’. An ‘investigative function’ (see the definition) is one of those functions that are ‘directly related to a lawful investigation and that are necessary for the conduct of that lawful investigation’. Reading the first limb together with the definition, they tend to support the conclusion that the agency being referred to throughout is the agency that is engaging in the lawful investigation. Nonetheless the first limb of clause 4 is not as precise as the second limb on this point.

55 The second limb of clause 4 provides that a ‘relevant agency’ need not comply with a listed IPP if non-compliance ‘is reasonably necessary for … its conduct of any lawful investigation’ (emphasis added). Here the position is clear. A relevant agency may only decline to comply with the strict requirements of the listed IPPs so far as that is reasonably necessary for the conduct of its own lawful investigation. There is no warrant given by the provision for an agency responding to an inquiry to rely on clause 4 as a basis for not complying with an IPP when responding to the investigating agency. In a case like the present, it must look to the ordinary provisions of the Privacy Act to ascertain whether it can disclose.

56 Given that no warrant is given to an assisting or responding agency to decline to comply where the investigating agency has reached the advanced stage of conducting a lawful investigation, it is unlikely, the Tribunal considers, that the drafter – here the Commissioner – would have intended that a more relaxed standard should apply in the case of the performance of an ‘investigative function’.

57 The interpretation of the first limb of clause 4, which was preferred in the Macquarie decisions, does not sit comfortably with the plain meaning of the second limb. While the interpretation preferred in Macquarie may be available as a matter of semantics, it is not consistent with the approach reflected in the provision, read in its entirety.

58 It would be a very odd outcome if the drafter had intended the first limb to operate more generously than the second limb. The second limb deals with a more serious situation than the first limb. It might be thought that once an agency was engaged in a lawful investigation its needs for co-operation from other agencies would be higher than when it is merely engaged in the performance of ‘investigative functions’. But the Commissioner has imposed a strict barrier. As the Tribunal sees it, clause 4 is dealing throughout with the situation of the same agency in connection with two areas of activity – the performance of ‘investigative functions’ and the conduct of a ‘lawful investigation’. The first limb simply seeks to address a less significant aspect of the activity of the agency, as compared to the second limb. The first limb attempts, through the use of a term with a broad meaning (‘investigative functions’), to cover activities that might not readily fit the definition of a lawful investigation, albeit that that definition (when read in conjunction with the definition of ‘investigation’) is itself quite broad.

59 Accordingly the Tribunal finds that a contravention occurred when NSWFB disclosed the personal information about NW derived from the occurrence book.

42 At [60] His Honour went on to indicate that if he was incorrect in his revised construction of clause 4, then he was satisfied that the remaining requirements of that clause were met in that application. He also said at [63]:
63 Finally, may I add that this case and the Macquarie case illustrate the desirability of their being some clarification of the direction as it applies to assisting or responding agencies.
43 It is noted that clause 4A was added to the above Direction after the decision in FM. There is no material before the tribunal to indicate that it was inserted as a result of that decision. In any even the applicable Direction for the purpose of this application is that which was in operation when the disclosure by the NSW Police was made. That is, clause 4A does not apply.

44 In my opinion, His Honour’s construction of clause 4 of the Direction as set out in the NW decision is to be preferred to the one accepted by Deputy President Magistrate Hennessy in FM. Accordingly, I find that the disclosure by NSW Police, the subject of this application, was not exempt under the terms of the Direction, as NSW Police were not the relevant agency conducting the investigation in respect to which the disclosure was made. That is, the disclosure was conduct that was the subject of the disclosure provisions in section 18 of the PPIP Act.

45 Had the conduct occurred after 3 November 2006, that disclosure would come within clause 4A of the Direction and would be excluded from the operation of the disclosure provisions in section 18 of the PPIP Act so long as the other requirements of clause 4 are met. As mentioned above I have not made any findings in that regard so as to enable the parties to make the appropriate submissions in the event this becomes relevant to any issue concerning the disclosure or any orders that are sought.

Conclusion

46 For the reasons set out above, the Tribunal finds that the conduct the subject of this application is not exempt or excluded under sub-section 27(1) or 41 of the PPIP Act. That is, the conduct remains subject to the operation of the information protection principles in the PPIP Act, in particular the disclosure provisions in section 18 of that Act.

47 In light of these findings it is appropriate that the parties file and serve draft orders as to how the matter is to proceed and that the matter be set down for further directions. The Tribunal encourages the parties to endeavour to identify what matters remain in issue and then to file consent orders accordingly.

Orders

1. On or before Thursday 3 April 2008 the parties to file and serve draft orders in regard to the progress of this application

2. The application is set down for further directions on Thursday 10 April 2008 at 10am.