Propositions and principles

In lieu of construing the ‘Limits on disclosure’ information protection principle (IPP) of the Privacy and Personal Information Protection Act 1998 (PPIP Act) and the ‘Limits on disclosure’ Health Privacy Principle (HPP) of the Health Records and Information Privacy Act 2002 (NSW) (HRIP Act) the New South Wales Civil and Administrative Tribunal applies propositions that narrow the principles’ scope and operation.

The propositions are:

1) That the IPP in s 18 of the PPIP Act “deals with external disclosure of the personal information by the agency”: Director General, Department of Education and Training v MT (GD) [2005] NSWADTAP 77 (23 December 2005), [39], and,

2) “The essence of disclosure of information is making known to a person information that the person to whom the disclosure is made did not previously know”: Nasr v State of New South Wales; Nasr v State of New South Wales [2007] NSWCA 101, [127].

When, however, the ‘Limits on disclosure’ IPP and HPP are construed,  the legislative intent to limit the ‘disclosure’ i.e. the ‘provision’ of personal information and health information within and without a public agency is revealed, and the propositions are wholly refuted. 

Obligations imposed

The ‘Limits on disclosure’ IPP and HPP say:

S 18 of the PPIP Act:  “(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 …”

HPP 11, HRIP Act: “(1)  An organisation that holds health information must not disclose the information for a purpose (a secondary purpose) other than the purpose (the primary purpose) for which it was collected unless …”

(In the HRIP Act “organisation means a public sector agency or a private sector person”.^[1])

(Certain conditions must be satisfied before the prohibitions are lifted. Exemptions from the obligation to comply with s 18(1) and HPP 11(1) are provided.^[2])

Rights conferred

S 18 and HPP 11(1) confer rights on individuals. They confer the rights that correlate to the obligation they impose on an agency; when a duty “is imposed for the benefit of particular persons, there arises at common law a correlative right in those persons who may be injured by its contravention”.^[3]

Acts’ purposes

The PPIP Act’s and HRIP Act’s purposes are relevant to the construction of s 18 and HPP 11(1); the High Court said, the “principle that requires that the particular provisions of the Act must be read in the light of the statutory objects is of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation the courts have a special responsibility to take account of and give effect to the statutory purpose”. ^[4] 

And the Court of Appeal said, “The court is also required to undertake the exercise of statutory construction with a view to promoting the purpose or object underlying the PPIP Act and the HRIP Act rather than construing the Acts in a manner which would not promote that purpose or object.”^[5]

The PPIP Act’s and HRIP Act’s purposes are:

PPIP Act: “An Act to provide for the protection of personal information, and for the protection of the privacy of individuals generally …”^[6]

HRIP Act: “to promote fair and responsible handling of health information by … protecting the privacy of an individual’s health information that is held in the public and private sectors …”^[7]

Approach to construction

As a basic principle s 18’s and HPP 11(1)’s words should be taken to have their ordinary meaning; “It is a well-established rule of interpretation that, unless something to the contrary appears, it will be taken that the legislature expressing its will in a Statute uses words in their ordinary meaning.”^[8]

Because, however, they are beneficial provisions of Acts developed to protect a human right, s 18’s and HPP 11(1)’s language must be given a wide interpretation; “Beneficial and remedial legislation must be given a liberal construction, which constitutes “the widest interpretation which its language will permit””.^[9]

S 18 and HPP 11(1) should be construed to the advantage of individuals, to give the fullest relief; a remedial provision “should be construed, so far as its language will allow, to the advantage of those whom it was intended to benefit” “so as to give the fullest relief which the fair meaning of its  language will allow”.^[10]

Beneficial legislation such as s 18 and HPP 11(1) should not be undermined by restrictions not founded in their text; “The text itself provides for its own restrictions. Unnecessary restraints, without the clearest foundation in the statute, should not be introduced by judges to undermine beneficial legislation of this kind.” ^[11]

Proposition 1 (s 18 deals with external disclosure)

Proposition 1 was, it appears, first made by the Tribunal in KJ v Wentworth Area Health Service [2004] NSWADT 84 (3 May 2004) who said (with respect to s 19 of the PPIP Act, and without referring to any authority), “generally speaking the expression “disclosure” refers to making personal information available to people outside an agency”^[12].

(S 19 then said,  “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, health or sexual activities unless the disclosure is necessary to prevent a serious or imminent threat to the life or health of the individual concerned or another person …”.)

In MT v Director General, NSW Department of Education & Training [2004] NSWADT 194 (3 September 2004), where the disclosure of personal information within the Department of Education and Training was not an issue, the NSW Privacy Commissioner’s publication, Guide to the Information Protection Principles, was cited as saying, “Disclosure refers to making personal information available to people outside the organisation, other than to the individual concerned …”.^[13]

(The Tribunal in MT did not indicate in its reasons whether or not it considered the Guide.  (If it did it shouldn’t have. The Guide is not the kind of extrinsic material that s 34 of the Interpretation Act 1987 (NSW) says may be considered to confirm or determine the meaning of a provision.))

On appeal, in Director General, Department of Education and Training v MT (GD) [2005] NSWADTAP 77 (23 December 2005), where the internal disclosure of personal information was still not an issue, the Appeal Panel said, “Section 17 deals with internal use of the personal information by the agency, while s 18 deals with external disclosure of the personal information by the agency”^[14].

No subsequent Tribunal or Appeal Panel has (as far as I can see) tested the proposition or construed s 18 or HPP 11(1) (to which the proposition is applied) and a “ line of privacy cases in the Tribunal and the former Administrative Decisions Tribunal (ADT), starting with the appeal case of Director General Department of Education and Training v MT (GD) [2005] NSWADTAP 77”^[15] generally agree “that there cannot be a disclosure within a public sector agency, and if such conduct was to offend the IPP’s then it would more likely offend the use provisions”^[16].

Problem with proposition 1

Contrary to the principle that words should be taken to have their ordinary meaning, and the principle that a beneficial provisions should be given “the widest interpretation which its language will permit”, proposition 1 has the effect of qualifying the ordinary meaning of the word ‘person’ in s 18 to exclude a person employed by or engaged by an agency, which gives s 18 a narrow scope and operation.

Meaning of ‘person’

The word ‘person’, which is not defined in the PPIP Act, ordinarily means “an individual human being”^[17].  

In the Interpretation Act 1987 (NSW), which contains definitions and other provisions that affect the interpretation and application of the PPIP and HRIP Acts,^[18] the word “person includes an individual, a corporation and a body corporate or politic”  (“individual means a natural person”)^[19]. 

If, according to principle, it is taken that the legislature used the word ‘person’ in in its ordinary sense to mean a natural person, and because the PPIP Act contains no contrary intention, then the word ‘person’ in s18 is inclusive of a person who is employed or engaged by an agency and the proposition that “s 18 deals with external disclosure of the personal information” is refuted.

Harmonious

Construing the word ‘person’ in s 18 as including a person who is employed or engaged as an agent of an agency makes s 18 harmonious with the PPIP Act obligations to: make the individual aware of “the intended recipients of the information”^[20]; and take steps to protect personal information against “unauthorised access, use, modification or disclosure, and against all other misuse”^[21].  “[A] provision should be read within the context of the legislation and whenever possible given a meaning which accords with the operation of other provisions and is harmonious with the enactment as a whole.”^[22]

Purpose promoting

Giving ‘person’ its ordinary meaning results in a construction of s 18 that promotes the purpose of the PPIP Act whereas giving ‘person’ a qualified meaning does not; “In the interpretation of a provision of an Act … a construction that would promote the purpose or object underlying the Act … shall be preferred to a construction that would not promote that purpose or object”^[23].

Rights protecting

Doubt about whether the word ‘person’ covers employees and agents can be overcome by the principles that: legislation is construed, where there is doubt, “to protect the fundamental rights of the individual”^[24], and, “where important human rights are concerned, protective and remedial legislation should not be construed narrowly lest courts become the undoers and destroyers of the benefits and remedies provided by such legislation”.^[25]  

(Doubt about whether an agency could perform its functions if s 18 prohibited an agency from providing an individual’s personal information to a person employed or engaged by the agency is removed when consideration is given to s 18’s conditions, and to the multitudinous exemptions, including consent, that are provided elsewhere in the PPIP Act (see footnote 2).)

Proposition 1 and HPP 11(1)

Despite the fact that s 18 prohibits the disclosure of personal information to persons, and HPP 11(1) prohibits the disclosure of health information for secondary purposes, the Tribunal transposed the proposition that s 18 deals with the external disclosure of personal information into HPP 11(1).

In ALZ v WorkCover NSW [2015] NSWCATAP 138 (10 July 2015) the Appeal Panel said: “The alleged ‘disclosure’ referred to the provision of the report by Inspector Dall to his supervisor, Mr Irwin. It is well established that the … ‘disclosure’ to which principles such as the HPPs refer is the external disclosure of the information to a person, body or entity other than the ‘organisation’ that holds the information. The circumstance that the appellant put in issue do not raise any ‘disclosure’ issue. We agree that HPP 11 was not engaged.^[26]”

The Appeal Panel’s proposition – that the disclosure HPP refers to the external disclosure of information to a person other that the organisation that holds the information – is refuted when HPP 11(1)’s words are given their ordinary meaning.

The proposition is further refuted when the training exception in HPP 11(1)(e) is considered and the principle of construction, that  sense is to be made of the whole so no words are superfluous or otiose,  is applied.

Ordinary meaning

HPP 11(1) says: (1) An organisation that holds health information must not disclose the information for a purpose (a secondary purpose) other than the purpose (the primary purpose) for which it was collected unless …)

The above words’ ordinary meaning is that an organisation must not disclose the information for a purpose other than the purpose for which the information was collected. Their ordinary meaning is not that an organisation must not disclose the information to a person “other than the ‘organisation’ that holds the information”.

The proposition gives HPP 11(1)’s words a different and narrower meaning in breach of the principles (cited previously) that words are taken to have their ordinary meaning and beneficial provisions are construed liberally and widely to the advantage of those who the provision was intended to benefit.

Furthermore, the ALZ Appeal Panel’s proposition causes the words ‘externally to a person, body or entity other than the organisation that holds the information’ to be read in after “must not disclose the information”. Reading words in is not permissible unless “the application of the literal or grammatical meaning would lead to a result which would defeat the clear purpose of a statute” and “three conditions [are] were fulfilled”^[27]  

As the literal and grammatical meaning of HPP 11(1)’s words does not defeat the clear purpose of the HRIP Act (“to promote fair and responsible handling of health information by … protecting the privacy of an individual’s health information that is held in the public and private sectors …”) the narrowing words of the proposition should not be read in.

In addition, nothing in HPP 11(1)’s text indicates that the legislature did not intend to prohibit the disclosure of health information within an organisation and HPP 11(1)(e) shows that it did.

Training condition

A clear legislative intention to prohibit the disclosure of health information within an organisation (unless …) is shown by HPP 11(1)(e), which provides:  

“An “organisation … must not disclose the [health] information for a … secondary purpose … unless—

(e) the disclosure of the information for the secondary purpose is reasonably necessary for the training of employees of the organisation or persons working with the organisation  and—

(i)  either—

(A)  that purpose cannot be served by the disclosure of information that does not identify the individual or from which the individual’s identity cannot reasonably be ascertained and it is impracticable for the organisation to seek the consent of the individual for the disclosure, or

(B)  reasonable steps are taken to de-identify the information, and

(ii)  if the information could reasonably be expected to identify the individual, the information is not made publicly available, and

(iii)  the disclosure of the information is in accordance with guidelines, if any, issued by the Privacy Commissioner for the purposes of this paragraph, or …

HPP 11(1)(e) releases  an organisation from HPP 11(1)’s prohibition against the disclosure of health information for a secondary purpose and permits an organisation to disclose health information for the secondary purpose of training employees and persons working with the organisation (subject to conditions).

If, as the Appeal Panel in ALZ said, HPP 11(1) referred to “the external disclosure of the information” then the training exception in HPP 11(1)(e) would be otiose. There would be no need for an exception that permitted the disclosure of health information to employees (and persons working with the organisation) for training purposes if the disclosure of health information within an organisation for secondary purposes was not prohibited by HPP 11(1).

Making the words of a provision otiose breaches the rule of statutory construction that “such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”^[28].

Refutations

The proposition that HPP 11(1) does not prohibit the disclosure of health information within an organisation is refuted.

It is refuted when HPP 11(1)’s words are given their ordinary meaning. It is refuted when HPP 11(1) is construed liberally and widely to the advantage of individuals. It is refuted on the basis that words should not be read in to a provision. And it is refuted on the basis that the training exception would be otiose if the internal disclosure of health information for a secondary purpose was not prohibited unless a condition was satisfied.

Proposition 2

Proposition 2 –  “The essence of disclosure of information is making known to a person information that the person to whom the disclosure is made did not previously know” – was made by the Court of Appeal in Nasr v State of New South Wales; Nasr v State of New South Wales [2007] NSWCA 101 (Nasr), [127], who were disposing of an Appeal.

The Tribunal applies the proposition from Nasr,^[29] but it is not bound to so.

Tribunal not bound

While the Tribunal is bound to follow principles of law laid down by the Court of Appeal (because the Court of Appeal is higher than the Tribunal in the juristic system and it can reverse the Tribunal’s decisions^[30]) the Tribunal is not bound to follow the proposition because the proposition is not the principle of law, or ratio decidendi, of Nasr.

(“The ratio decidendi of the case is the general rule of law that the court propounded as its reason for the decision … the ratio decidendi of the case binds courts that are lower in the judicial hierarchy than the court deciding the case.”^[31])

Ratio of Nasr

In Nasr, the Court of Appeal was deciding the issue of whether a miscarriage of justice occurred when the trial judge accepted evidence that was said to be unlawfully obtained under either s 13 of the Criminal Records Act 1991 (NSW), or s 18 of the PPIP Act, or both.

The Court made its proposition about the essence of disclosure but decided (the ratio decidendi is) that “the basis upon which the admissibility of the documents was opposed has no substance in law” because “Nothing in this [the PPIP] Act affects the manner in which a court or tribunal …exercises the court’s … judicial functions” (s 6(1)) and “Nothing in Part 2 or 3 [of the PPIP Act] gives rise to, or can be taken into account in, any civil cause of action …” (s 69(1)).

The Court’s proposition about the essence of disclosure is not, therefore, the principle of law or the ratio decidendi of Nasr and the Tribunal is not bound to follow it.

No argument no principle

Furthermore, even if the Court of Appeal’s proposition about the essence of disclosure had been the ratio decidendi of the case the Tribunal would still not be bound to follow it because the meaning of the word ‘disclose’ was not argued before the Court, and, “where a proposition of law is incorporated into the reasoning of a particular court, that proposition, even if it forms part of the ratio decidendi, is not binding on later courts if the particular court merely assumed its correctness without argument”.^[32]

Meaning of ‘disclose’

The meaning of the words ‘disclose’ and ‘disclosure’ have been considered by many courts (see the Appendix).

At its widest the word ‘disclose’ has been said to mean ‘provide’^[33].  At its narrowest the word ‘disclosure’ has been said to mean “making known to a person information that the person to whom the disclosure is made did not previously know”, which is the proposition from Nasr.

According to the principles of statutory construction (cited previously) the word ‘disclose’ should not be given it narrowest meaning.

‘Disclose’ should be construed in the context of the PPIP and HRIP Act’s purposes to the advantage of the individuals who are the intended beneficiaries of s 18 and HPP 11(1). The word ‘disclose’ should be given “the widest interpretation which its language will permit”, which is ‘provide’.

Light thrown

If the meaning of ‘disclose’ in s 18 and HPP 11(1) was ambiguous its meaning could be discerned from the Government Information (Public Access) Act 2009 (NSW) (GIPA Act); “Where the interpretation of a statute is obscure or ambiguous, or readily capable of more than one interpretation, light may be thrown on the true view to be taken of it by the aim and provisions of a subsequent statute”.^[34]

In the GIPA Act “disclose information includes make information available and release or provide access to information”.^[35]

Both the PPIP and HRIP Acts say that provisions of the GIPA Act “that impose conditions or limitations (however expressed) with respect to any matter referred to in” s 13, 14 or 15 of the PPIP Act or HPP 6, 7 and 8 of the HRIP Act “are not affected by this [the PPIP and the HRIP] Act[s], and those provisions continue to apply in relation to any such matter as if those provisions were part of this [the PPIP Act and HRIP] Act[s]” ^[36].

The relevant provisions of the GIPA Act would include s 14, Table, clause 3(a) and (b) which says:

“There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to … reveal an individual’s personal information [or] … contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002.”

If the above provision applies as if it was part of the PPIP and HRIP Acts then it would follow that the GIPA Act definition of ‘disclose’ is transposed into the PPIP and HRIP Acts as if it were part of the PPIP and HRIP Acts.

Consistent result

When the GIPA Act meaning of disclose is read into s 18 and HPP 11(1) they say:

S 18: A public sector agency that holds personal information must not disclose i.e. make information available or release or provide access to 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 …”

HPP 11(1):  An organisation that holds health information must not disclose i.e. make information available or release or provide access to the information for a purpose (a secondary purpose) other than the purpose (the primary purpose) for which it was collected unless …”

Which accords with the meaning of ‘disclose’ that is arrived at when s 18 and HPP 11(1) are construed and which surely is the meaning that the Legislature intended the word ‘disclose’ to have in the Acts it developed to protect the privacy rights of individuals.

 

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Appendix of ‘disclose’ cases

In the following cases courts (and a tribunal) considered the meaning of the words ‘disclose’ or ‘disclosure’.

In Regina v Lipton [2011] NSWCCA 247 (17 November 2011) the Court considered the meaning of the word ‘disclose’ in s 15A of the Director of Public Prosecutions Act 1986 (NSW), which gave “Police officers investigating alleged indictable offences … a duty to disclose to the Director all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person”. 

The Court said “s 15 A of the DPP Act obliged the Police to disclose, in the sense of produce” the material. That “the ordinary meaning of the word “disclose” is to “to cause to appear; allow to be seen; make known; reveal: to disclose a plot” and “to uncover; lay open to view“: Macquarie Dictionary Online.” And, it was apparent that, under s 15A, relevant information “is to be provided …”^[37]

In Green v AMP Life [2005] NSWSC 95 (16 February 2005) the Court considered the “notion of disclosure” in the context of the test for client legal privilege in s 18 of the Evidence Act 1995 (NSW) and said, ““disclosure” involves something becoming revealed which was previously hidden, or known which was not previously known. There can, it seems to me, be disclosure of a matter, even if not everything concerning that matter is disclosed”.^[38]

In Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 1070 (13 October 2008) the Court said, in the context of provisions of the Evidence Act 1995 (NSW) which concerned client legal privilege, “it is not possible to “disclose” to a particular person something already known to or possessed by that person”.^[39]

The Court, in H M and O Investments Pty Limited v Ingram (No.1) [2011] NSWSC 550 (10 June 2011), considered the meaning of ‘disclose’ in the context of s 118 of the Evidence Act 1995 (NSW), which says: “Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of … a confidential communication made between the client and a lawyer …”.

The Court said, “The primary meaning of the verb “to disclose” may be taken as “to make known; reveal” (see, for example, the Australian Oxford Dictionary (2 nd Edition, 2004)). The noun “disclosure” has a corresponding meaning: “The act or an instance of disclosing; … something disclosed” .^[40]

In the Application of Nicholas Basil Cannar; re Sharon Y Eubanks,^[41] the Court considered the meaning of ‘disclose’ in s 118 and s 119 of the Evidence Act 1995 (NSW), which say, “Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of”: “a confidential communication made between the client and a lawyer” (s 118); “… for the dominant purpose of the client being provided with professional legal services …”.

Although the Respondent referred the Court “to definitions of the verb to “disclose” contained in a number of dictionaries”, the Court said (and the Court of Appeal did not disagree^[42]) that, “It is sufficient to refer to part of the definition given in the Shorter Oxford English Dictionary, Clarendon Press, Oxford, “to uncover; to remove a cover from and expose to view”.^[43]

In Hurworth Nominees Pty Limited v ANZ Banking Group Limited [2006] NSWSC 1278 (7 December 2006) the Court considered the meaning of the word ‘disclose’ in the context of a provision of the Farm Debt Mediation Act 1994 which prohibited “disclosure of “any information obtained in a mediation session” except in the circumstances provided in s 16(a) to (e) …”

The Court said, “The word “disclose” in s 16 of the Act means to “make known” or to “reveal”: The New Oxford Dictionary of English, Clarendon Press Oxford, 1998; The Macquarie Dictionary, Federation Edition, The Macquarie Library, 2001. Thus s 16 does not prohibit the disclosure of things said at the mediation if those things do not amount to “information obtained” at the mediation”.^[44]

In R v AW [2005] QCA 152 (13 May 2005) the Court considered the meaning of the word ‘disclose’ in the context of s 4A of the Criminal Law (Sexual Offences) Act 1978 (QLD).

The Court said, the definition of “complaint” in s 4A(6) of the Act “includes a disclosure”. ““Disclosure” is not defined in the Act, but has the dictionary definition of “the act of disclosing; exposure; revelation”. The dictionary definition of the verb “disclose” includes “to cause to appear; allow to be seen; make known; reveal: … uncover, lay open to view“.^[45] It follows that a “disclosure” includes a revelation or disclosure after questioning …”^[46]

Foster v Federal Commissioner of Taxation [1951] HCA 18 (27 April 1951) concerned whether the tax payer had complied with his duty to disclose information to the tax commissioner in circumstances where the tax payer knew (or would have known) that the tax commissioner already knew the information.

The Court said, “it is not possible, according to the ordinary use of language, to “disclose” to a person a fact of which he is, to the knowledge of the person making a statement as to the fact, already aware. There is a difference between “disclosing” a fact and stating a fact. Disclosure consists in the statement of a fact by way of disclosure so as to reveal or make apparent that which (so far as the “discloser” knows) was previously unknown to the person to whom the statement was made. Thus the taxpayer could not add anything to the commissioner’s knowledge with respect to the appeal. In my opinion in these circumstances it should be held that the failure of the taxpayer to repeat to the commissioner what he already knew did not constitute a failure to disclose material facts.^[47] 

In Federal Commissioner of Taxation v Westgarth [1950] HCA 59 (8 June 1950), the Court considered whether “the value of the asset was not fully and truly “disclosed” within the meaning of s. 20 (2) [of the Estate Duty Assessment Act 1914-1942]”. The Court said, “The critical word in this sub-section is, indeed, I think, the word “disclosure” … “both the etymology of the verb “disclose” and its normal and popular use involve, in such a context, the idea of revealing to others something which is known to oneself”.^[48]

Ashby v Commonwealth of Australia (No 2) [2012] FCA 766 (13 July 2012) concerned a journalist’s privilege under s 126H(1) of the Evidence Act 1995 (Cth). The Court agreed “that it is not possible to “disclose” to a particular person something already known to or possessed by that person”.^[49]

 The Court further said, “The ordinary and natural meaning of the word “disclose” includes:

• to open up (that which is closed or shut); to unclose … to open up to the knowledge of others;  to make openly known, reveal, declare (secrets, purposes, beliefs, etc).  (Oxford English Dictionary online)
• to cause, to appear; allow to be seen; make known; reveal … to uncover; lay open to view; (The Macquarie Dictionary online)

The Court said, “These meanings convey the sense in which s 126H(1) uses the words “would disclose the identity of the informant or enable that identity to be ascertained”^[50], and,  s 126H(1) assumes that the informant’s identity is unknown at the time that the privilege is claimed.^[51]

In Dupois v Queensland Television Ltd & Ors [2016] QCA 182 (28 June 2016) the Court said, the words ‘disclose’ and ‘disclosure’ in s 6 of  the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) “should be given their natural meaning – to expose to view, to reveal or to make known.^[52] 

In ALZ v WorkCover NSW [2015] NSWCATAP 138 (10 July 2015) the Appeal Panel said: “The alleged ‘disclosure’ referred to the provision of the report by Inspector Dall to his supervisor, Mr Irwin. It is well established that the … ‘disclosure’ to which principles such as the HPPs refer is the external disclosure of the information to a person, body or entity other than the ‘organisation’ that holds the information. The circumstance that the appellant put in issue do not raise any ‘disclosure’ issue. We agree that HPP 11 was not engaged.”^[53]

In Nakhl Nasr v State of New South Wales; George Nasr  v State of New South Wales[2007] NSWCA 101 (4 May 2007) the Court considered whether a spent conviction or charge sheets had been disclosed in contravention of either s 13 of the Criminal Records Act 1991 (NSW) or s 18 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act), and whether the Court below had erred in admitting the documents into evidence.

The Court said: “The essence of disclosure of information is making known to a person information that the person to whom the disclosure is made did not previously know: R v Skeen & Freeman (1859) Bell 97; 169 ER 1182 (“uncovering … discovering … revealing … imparting of what was secret … [or] telling that which had been concealed”); Foster v Federal Commissioner of Taxation (1951) 82 CLR 606 at 614-5 (“… a statement of fact by way of disclosure so as to reveal or make apparent that which (so far as the “discloser” knows) was previously unknown to the person to whom the statement was made“); R v Gidlow [1983] 2 Qd R 557 at 559 (“telling that which has been kept concealed”); Dun & Bradstreet (Australia) Pty Ltd v Lyle (1977) 15 SASR 297 at 299; A-G v Associated Newspapers Ltd [1994] 2 AC 238 at 248 (“to open up to the knowledge of others”); Real Estate Opportunities Limited v Aberdeen Asset Managers Jersey Limited [2007] EWCA Civ 197 at [78] (“the revelation of information for the first time”).”^[54]

The Court said it “would not infer that the provision of the documents amounted to the disclosure of information relating to a spent conviction. There is simply no proof or concession concerning how much that solicitor knew about the convictions before obtaining the charge sheets,”^[55] and, “For the same reasons … [it was] not satisfied that making the charge sheets available involved any disclosure of information [under s18 of the PPIP Act].^[56]

In Pratt Consolidated Holdings Pty Ltd and Commissioner of Taxation [2011] AATA 907 (16 December 2011), the authorities cited by the Court of Appeal in Nasr were considered (in some detail) by the Administrative Appeals Tribunal (AAT) in the context of the Commonwealth Freedom of Information Act 1982.  

The AAT said the Court in Skeen & Freeman had “acknowledged that a person may disclose what is already known or may disclose that which is not known” and “rather than suggesting that the word “disclose” must always be interpreted as referring to making known what was previously unknown or secret, each of these authorities has looked to the context in which the word is used”.^[57]

 

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[1]S 4.

[2] S 18 conditions: the prohibition against the disclosure of personal information is lifted if: the disclosure is directly related to the collection purpose and the agency has no reason to believe that the individual would object (s 18(1)(a)), or the individual is likely to be aware that information of the kind is usually disclosed (s 18(1)(b)), or the agency believes the disclosure is necessary to prevent a serious and imminent risk to life or health (s18(1)(c)).

S 18 exemptions: an agency is not required to comply with s 18 in specified circumstances that concern: law enforcement (s 23), investigative agencies (s 24), lawful authority or requirement (s 25), benefit to the individual (s 26), consent by the individual (s 26), information exchange between agencies (s 27A), research (s 27B), and informing a Minister or the Premier (s 28).

HPP 11(1)’s prohibition against the disclosure of health information is lifted if a condition provided in HPP 11(1) under the headings: Consent, Direct relation, Serious threat to health or welfare, Genetic information, Management of health services, Training, Research, Compassionate reasons, Find missing person, Suspected unlawful activity, unsatisfactory professional conduct or breach of discipline, Law enforcement, Investigative agencies, and Prescribed circumstances are satisfied.

HPP 11(2) exemption: an organisation is not required to comply with HPP 11 in specified circumstances that concern: lawful authority or requirement not to comply. HPP 11(3) exemption: specified agencies are not required to comply with HPP 11 in relation to their complaint handling, investigative, review and reporting functions.

HPP 11(4): Nothing in HPP 11 prevent the disclosure of health information in specified circumstances that involve the disclosure of health information between agencies to inform a Minister or the Premier.

[3] Sovar v Henry Lane Pty Ltd [1967] HCA 31 (20 September 1967), McTiernan A.C.J..

[4] Waters  v Public Transport Corporation [1991] HCA 49 (1992) (3 December 1991), [21].

[5] AQO v Minister for Finance and Services [2016] NSWCA 248 (5 September 2016), [74].

[6] PPIP Act, long title.

[7] HRIP Act, s 3.

[8] Colon Peaks Mining Co v Council of the Wollondilly Shire [1911] HCA 70 (21 December 1911), O’Connor J.

[9] Central Northern Adelaide Health Service v Atkinson [2008] SASC 371 (24 December 2008), [81].

[10] Bull v Attorney-General (NSW) [1913] HCA 60 (1 December 1913), Isaacs J.

[11] Griffith University v Tang [2005] HCA 7 (3 March 2005), [153].

[12] [50].

[13] [83].

[14] [39].

[15] CTH v The University of New South Wales [2017] NSWCATAD 244 (9 August 2017), [38].

[16] Ibid. [39].

[17] The Australian Concise Oxford Dictionary (2nd ed) (1992) Oxford University Press.

[18] S 3 PPIP Act, s 4 HRIP Act.

[19] Interpretation Act, s 21.

[20] PPIP Act, s 10.

[21] PPIP Act, 12(c).

[22] Johns v Australian Securities Commission [1993] HCA 56 (13 October 1993), [36].

[23] Interpretation Act 1987,  s 33.

[24] Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58 (06 October 2005), [215].

[25] IW v City of Perth [1997] HCA 30 (31 July 1997), Kirby J.

[26] [108].

[27] James Hardie and Co v Seltsam Pty Ltd [1998] HCA 78 (21 December 1998), [73].

[28] Plaintiff M47-2012 v Director General of Security [2012] HCA 46 (5 October 2012), [41].

[29] See ZR v NSW Department of Education and Training [2009] NSWADT 84 (21 April 2009),[42]; BFR and BFS v Moree Plains Shire Council [2014] NSWCATAD 197 (14 November 2014), [33]; CEU v University of Technology Sydney [2017] NSWCATAD 79 (13 March 2017), [148]; CJU v NSW Ministry of Health [2018] NSWCATAD 181(10 August 2018), [61]; and, DQJ v Secretary, Department of Family and Community Services [2019] NSWCATAD 138 (15 July 2019), [22].

[30] In Favelle Mort Ltd v Murray [1976] HCA 13 (1 April 1976), Barwick C.J, [21] said, “The ultimate foundation of precedent which thus binds a court is that a court or tribunal higher in the hierarchy of the same juristic system, and thus able to reverse the lower court’s judgment, has laid down that principle as part of the relevant law.”

[31] Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16 (1 April 2004), [59-60].

[32] CSR Ltd v Eddy [2005] HCA 64 (21 October 2005), [13].

[33] Regina v Lipton [2011] NSWCCA 247 (17 November 2011), [105].

[34] Boyd v Carah Coaches Pty Ltd [1979] HCA 56 (22 November 1979), Gibbs J., [2].

[35] GIPA Act, Schedule 4, clause 1.

[36] See s 20(5) of the PPIP Act and s 22(3) of the HRIP Act.

[37] [105].

[38] [18].

[39] [19].

[40] [14].

[41] being the person nominated by the United States District Court for the District of Columbia in proceedings United States of America v Phillip Morris Incorporated et al Civil Action No.99-CV-2496 (GK), for the purposes of applying for orders under section 33 of the Evidence on Commission Act 1995 [2003] NSWSC 802 (8 October 2003).

[42] British American Tobacco Australia Services Limited v Sharon Y Eubanks for the United States of America; Nicholas Basil Cannar v Sharon Y Eubanks for the United States of America; British American Tobacco (Investments) Limited v Sharon Y Eubanks for the United States of America [2004] NSWCA 158 (18 May 2004)

[43] [81].

[44] [40].

[45] Citing the Macquarie Dictionary, Federation edition, Macquarie Library, 2001.

[46] [26].

[47] Latham C. J , [11].

[48] Fullagar J, [8].

[49] [25].

[50] [31].

[51] [32].

[52] [72], and citing The Australian Concise Oxford Dictionary, 5th ed (2009) at 399.

[53] [108].

[54] [127].

[55] Ibid.

[56] [132].

[57] [108 – 118].