Written by Workers Compensation Report editor Peter Angelopoulos
Former NSW finance and services minister Gregory Pearce MLC was not a ‘public sector agency’ under state privacy laws when his office distributed a media release referencing two injured worker case studies, an appeals tribunal has found. The ‘anonymised’ case studies were contained in an April 23, 2012, media release heralding reform of the state’s workers’ compensation system.
On December 3, 2014, NSW Civil and Administrative Tribunal (NCAT) Senior Member (SM) Stephen Montgomery was “satisfied” the then minister was a public sector agency under the Privacy and Personal Information Protection Act 1998 (PPIP Act) and the Health Records and Information Privacy Act 2002 (HRIP Act).
But NCAT Appeal Panel Acting Judge (AJ) Kevin O’Connor and Senior Member (SM) Emeritus Professor Geoffrey Walker this month set aside that decision. They found a minister’s ‘department’ had greater “hierarchical” significance than a ‘minister’ in the definition of public sector agency under the PPIP Act and the HRIP Act. That meant Pearce, via the finance and services dept, did not have to conduct an internal review of the matter, as the respondent known as AQO had sought.
Harris & Harris senior associate Jackson Rogers, acting for AQO, told WCR he was seeking an opinion from senior counsel in consideration of launching a test case in the NSW Supreme Court.
AQO had alleged Pearce “breached my privacy by: obtaining access to another entity (either WorkCover or insurer CGU); and obtained access to private medical and dispute information relating to my claim”. It was also alleged Pearce used “some other means to access information not freely available”.
The PPIP Act requires a ‘public sector agency’ to observe a series of ‘information protection principles’ (IPPs) in handling ‘personal information’ in its possession relating to individuals. The HRIP Act also requires ‘organisations’ to observe a series of ‘health privacy principles’ (HPPs) in its handling of ‘health information’.
AQO had applied to the then finance and services minister under both of those laws for review of the alleged conduct in obtaining and using the information in the media release. AQO then applied to NCAT for an external review. SM Montgomery at first instance found Pearce was subject to the law. But AJ O’Connor and SM Walker found there was no express reference to ministers in any “of the primary parts of the definition of ‘public sector agency’, despite the centrality of ministers to the system of executive government”. AQO also submitted that if the appeal panel found the tribunal erred in concluding the then finance and services minister fell within the definition of public sector agency, they should nonetheless remit the matter for internal review. AQO also submitted the appeal panel amend the remittal to confine it to the conduct of the minister’s office, as distinct from the minister.
But AJ O’Connor and SM Walker said if they were “to accede to” AQO’s request, he “would not be faced with the hurdle that would otherwise arise in progressing his complaint”. The hurdle was “the statutory bar that only allows review applications of the present kind to be made within six months of the time when the applicant first became aware of the conduct, unless the agency itself agrees to extend the time for making the application”. In their view it was “too late” in the proceedings for such a course to be adopted. While it was “true” AQO was unrepresented when the review application was lodged, the tribunal file revealed he has been represented since July 9, 2013. The question of adding the minister’s office as a separate respondent could have been “pressed some time ago”, they said. It followed AQO’s application for review was “outside the jurisdiction of the tribunal, and must be dismissed”. (Pearce v AQO , NSWCATAP 162, 11/08/2015)
(This story first ran in Workers Compensation Report 1021, 16 June, 2015)
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