Inconsistency

Section 25, PPIP Act

Section 25 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) says: “A public sector agency is not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 if the agency is lawfully authorised or required not to comply with the principle concerned, or … 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)”.

The NSW Court of Appeal said s 25’s “apparent purpose is to ensure that the Privacy Act does not override other statutory provisions with which it is inconsistent.”^[1]

Well, there’s absolutely no chance that the New South Wales Civil and Administrative Tribunal (Tribunal) would allow the PPIP Act to override an inconsistent statutory provision because the Tribunal applies s 25 to override the PPIP Act when an Act or other law is wholly consistent with the PPIP Act.

Meaning of inconsistent

A “law is inconsistent with another law when the command or power or other provision in one law conflicts directly with the command or power or provision in the other”.^[2]

Conflict

“[E]very attempt should be made to reconcile competing statutes and it is only where they are irreconcilable that they should be held to conflict”.^[3]

Operate together

Courts do not look for possible conflicts, they look for practical ways in which the legislations operate together, and whether an irreconcilable conflict of duties really arises.^[4]

PPIP Act wrongly overridden

In the following cases the Tribunal applied s 25 (or the equivalent provision of the Health Records and Information Privacy Act 2002 (NSW) (HRIP Act)) to override the PPIP Act (or the HRIP Act) even though there were practical ways in which the Acts could operate together. The Tribunal decided:

The Department of Community Services was entitled to contravene sections 13 -15 of PPIP Act because of s 248 of the Children and Young Persons (Care and Protection) Act 1998 (NSW).^[5]

The Health Care Complaints Commission was entitled to contravene s 18 of the PPIP Act because of s 16 of the Health Care Complaints Act 1993 (NSW).^[6]

Macquarie University was entitled to contravene s 18 of the PPIP Act because of s 53 of the PPIP Act.^[7]

The Snowy River Shire Council was entitled to contravene s 18 of the PPIP Act because of s 12(6) of the Local Government Act 1993 (NSW).^[8]

The Department of Education and Training was entitled to contravene sections section 9, 10, 13, 14, 15, 17, 18 or 19 of the PPIP Act because of workers compensation legislation.^[9]

NSW Maritime was entitled to contravene s 18 because of the Legal Profession Act 2004 (NSW) (but perhaps s 24(4) of the PPIP Act applied in that case).^[10]

The Department of Education and Training was entitled to contravene s 18 of the PPIP Act because of workers compensation legislation.^[11]

The Department of Education and Communities was entitled to contravene s 16 because of workers compensation legislation.^[12]

The Sydney Local Health Network was entitled to contravene s 17 and s 18 of the PPIP Act because of the Freedom of Information Act 1989 (NSW).^[13]

The Department of Premier and Cabinet was entitled to contravene Health Privacy Principles (HPPs) 10(1) and 11(1) because of s 90B of the Anti-Discrimination Act 1977 (NSW).^[14]

The Sydney Children’s Hospital Specialty Network (Randwick and Westmead) was entitled to contravene sections 9, 10, 15 and 17, 18 or 19 of the PPIP Act because of s 90B of the Anti-Discrimination Act 1977 (NSW).^[15]

WorkCover NSW was entitled to contravene HPP 10 because of s 59 or s 62 of the Occupational Health and Safety Act 2000 (NSW).^[16]

The NSW Ambulance Service was entitled to contravene s 17 and s 18 because of workers compensation legislation.^[17]

The Crown Solicitor’s Office was entitled to contravene sections 9, 10, 13, 14, 15, 17, 18 or 19 of the PPIP Act because of the “law relating to the use of McKenzie friends and agents in ADT [Administrative Decisions Tribunal] proceedings”.^[18]

The Department of Family and Community Services was entitled to contravene s 18 of the PPIP Act because of cl. 33 of the New South Wales Professional Conduct and Practice Rules 2013.^[19]

SafeWork NSW was entitled to contravene HPP 11 and s 18 of the PPIP Act because of s 54 of the PPIP Act and s 58 of the Administrative Decisions Review Act 1997 (NSW).^[20]

The NSW Police Force was entitled to contravene sections 9, 10, 13, 14, 15, 17, 18 or 19 of the PPIPA Act because of s 12 of the Victims Rights and Support Act 2013 (NSW).^[21]

The Western Sydney University was entitled to contravene s 18 of the PPIP Act because of s 38 and s 70(c) of the Civil and Administrative Tribunal Act 2013 (NSW).^[22]

The University of Sydney was entitled to contravene s 17 and s 18 of the PPIP Act, and HPPs 10 and 11, because of: s 54 of the Government Information (Public Access) Act 2009 (NSW), s 63(1) of the Administrative Decisions Review Act 1997 (NSW) and s 38(1) Civil and Administrative Tribunal Act 2013 (NSW).^[23]

Basis for Tribunal’s approach

Two critical failures are the basis for the Tribunal’s above decisions. The first is the Tribunal’s failure to make the following distinctions:

• A distinction between when an agency is lawfully authorised or required not to comply with a section of the PPIP Act, and when an agency is lawfully authorised or required to exchange information generally;
• A distinction between when non-compliance with a section of the PPIP Act is permitted etc. under an Act or any other law, and when an exchange of information generally is permitted under an Act or any other law.

The second is the Tribunal’s failure to be governed by the principle of legality – a legal value respected by courts and parliament, which says, “Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms … unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment”.^[24]

The Tribunal did not, in any of the above cases, look for language that showed that the legislature had directed its attention to privacy rights and consciously decided to curtail or abrogate them. If it had it wouldn’t have found any such language because it wasn’t there. The PPIP Act and the Acts or other laws could operate together.

Essentially

Section 25 ought to be applied to ensure that the PPIP Act “does not override other statutory provisions with which it is inconsistent”^[25] and not applied like a get-out-of-jail-free-card for public agencies that have contravened the PPIP Act.

 

---

 

[1] Turnbull v Strange [2018] NSWCA 157 (20 July 2018), [19].

[2] Clyde Engineering Co Ltd v Cowburn [1926] HCA 6 (19 April 1926), Knox C.J., Gavan Duffy J.

[3] North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41 (11 November 2015), [227].

[4] Ferdinands v Commissioner for Public Employment [2006] HCA 5 (2 March 2006), [116].

[5] MY v Director General, Department of Community Services [2004] NSWADT 203 (17 September 2004).

[6] NZ v Health Care Complaints Commission [2006] NSWADT 111 (13 April 2006).

[7] QE and anor v Macquarie University [2008] NSWADT 144 (26 May 2008).

[8] JS v Snowy River Shire Council (No 2) [2009] NSWADT 210 (7 August 2009).

[9] PN v Department of Education and Training [2009] NSWADT 287 (23 November 2009) and PN v Department of Education and Training (GD) [2010] NSWADTAP 59 (31 August 2010).

[10] MH v NSW Maritime [2011] NSWADT 248 (1 November 2011).

[11] VK v Department of Education & Training (No 3) [2011] NSWADT 168 (13 July 2011).

[12] Department of Education and Communities v VK (GD) [2011] NSWADTAP 61 (19 December 2011).

[13] KT v Sydney Local Health Network [2011] NSWADT 171 (15 July 2011).

[14] AIL v Department of Premier and Cabinet [2012] NSWADT 191 (19 September 2012) and AIL v Department of Premier and Cabinet (GD) [2013] NSWADTAP 26 (7 June 2013).

[15] AFC v The Sydney Children’s Hospital Specialty Network (Randwick and Westmead) [2012] NSWADT 189 (18 September 2012).

[16] ALZ v WorkCover NSW [2014] NSWCATAD 49; (24 April 2014).

[17] BFP v NSW Ambulance Service [2015] NSWCATAD 39 (13 March 2015).

[18] AQG v Crown Solicitor’s Office [2015] NSWCATAD 112 (5 June 2015).

[19] APV and APW v Department of Family and Community Services [2015] NSWCATAD 140 (6 July 2015).

[20] ALZ v SafeWork NSW (No 2) [2016] NSWCATAD 121 (16 June 2016) and ALZ v SafeWork NSW [2017] NSWCATAP 51 (9 March 2017).

[21] DKB v Commissioner of Police, NSW Police Force [2018] NSWCATAD 193 (24 August 2018) and DKB v Commissioner of Police NSW Police Force [2019] NSWCATAP 39 (13 February 2019).

[22] CCM v Western Sydney University (No 2) [2018] NSWCATAD 205 (4 September 2018) and CCM v Western Sydney University [2019] NSWCATAP 103 (26 April 2019).

[23] DQN v The University of Sydney [2019] NSWCATAD 266 (19 December 2019).

[24] Al-Kateb v Godwin [2004] HCA 37 (6 August 2004), [19-20].

[25] Turnbull v Strange [2018] NSWCA 157 (20 July 2018), [19].