AQO v Minister for Finance and Services

McCOLL JA: The applicant, AQO, seeks leave to appeal from a decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal (NCAT) holding that the Minister for Finance and Services, at all relevant times Gregory Pearce (Minister), did not fall within the definition of “public sector agency” in the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) and the Health Records and Information Privacy Act 2002 (NSW) (HRIP Act). [1]

In my view, leave to appeal should be granted as the matter concerns an important question of principle concerning the construction of the two Acts. For the reasons that follow, I am of the view that the appeal should be dismissed with costs.

On 23 April 2012, the Minister, then the New South Wales Minister for Finance and Services, issued a media release titled “WorkCover Improvements Begin”. The release announced the publication of an issues paper and the establishment of a Parliamentary Committee for the purposes of reforming WorkCover, the State’s Workers’ Compensation Scheme. The release stated that the Scheme had a deficit of over $4 billion and would fast become unviable without substantial reform. The release included two anonymised case studies which were intended to provide examples of excessive benefit outcomes.

AQO became aware of the media release and considered that “Case Study One” contained unique details of his worker’s compensation claim, being health and personal information that was not on the public record prior to the publication of the media release.

On 21 January 2013, AQO made a “Privacy Complaint” pursuant to s 53 of the PPIP Act and s 21 of the HRIP Act, provisions which apply, relevantly, to a “public sector agency”. He sought, in particular, an internal review of the Minister’s alleged conduct in obtaining and using his personal information for the purposes of the media release.

The Minister refused to conduct an internal review. He said that he was not a “public sector agency” within the meaning of the relevant Acts. Accordingly he said he was not subject to internal review.

On 13 May 2013 AQO applied to the New South Wales Civil and Administrative Tribunal (Tribunal) for an administrative review of the Minister’s conduct. [2] The Minister challenged the Tribunal’s jurisdiction on the basis that a Minister of the Crown did not fall within the definition of “public sector agency” in either Act.

The Tribunal held that the Minister fell within paragraph (d) of the definition of a “public sector agency” and remitted the matter to the Minister’s office for determination of the internal review application. [3] The Tribunal reached that conclusion on the basis that accounts kept by the Minister’s office were kept “in relation to” the Minister or the Minister’s functions, and that these accounts satisfied one or more of the requirements set out in paragraph (d)(i)-(iv).

The Minister appealed from the Tribunal’s decision to the Appeal Panel, contending that the Tribunal erred in construing paragraph (d) to include a Minister. [4] The appeal was allowed. [5] The effect of that decision was that AQO was not entitled to any review of the Minister’s conduct.

The Minister ceased to hold ministerial office on 2 August 2013. Neither party suggests that fact renders the issue moot.

Essentially, as I explain below, the PPIP Act and the HRIP Act require public sector agencies (and private sector persons in the case of the HRIP Act) to comply with certain information principles in relation to either “personal information” (the PPIP Act) or “health information” (the HRIP Act).

At the time AQO sought the internal review, the PPIP Act and HRIP Act relevantly provided as follows. [6]

Both Acts bound “the Crown in right of New South Wales and also, in so far as the legislative power of Parliament permits, the Crown in all its other capacities.” [7]

The purpose and objects of the HRIP Act were, relevantly:

Certain definitions were common to both Acts relevantly as follows: [9]

Section 15, which appeared in Part 2 (Information protection principles), Div 1 (Principles) of the PPIP Act referred expressly to a “Minister” as follows:

The PPIP Act required public sector agencies to observe a series of “information protection principles” (IPPs) set out in Part 2, Division 1, in handling “personal information” in their possession about individuals. [13] “Personal information” was defined in s 4 of the PPIP Act as “information or an opinion … about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.”

The IPPs dealt, among other matters, with the collection of personal information by a public sector agency, its retention by that agency, access to information held by a public sector agency by the individual to whom the information related, amendment of the personal information at the request of the individual to whom the information related and limits on a public sector agency using and disclosing personal information. [14]

Pursuant to PPIP Act s 28(3), nothing in ss 7, 18 or 19 prevented or restricted the disclosure of information:

PPIP Act, Part 3, Div 1 dealt with the making of privacy codes of practice for the purpose of protecting the privacy of individuals by regulating the collection, use and disclosure of, and the procedures for dealing with personal information held by public sector agencies. [16] A public sector agency was required to comply with any privacy code of practice applying to the agency. Contravention of such a code by a public sector agency was conduct to which PPIP Act, Part 5 applied. [17] Section 33(1) in Div 2 required each public sector agency to prepare and implement a privacy management plan within 12 months of the commencement of s 33. Such a plan was required to include provisions relating to the devising of policies and practices to ensure compliance by the agency with the requirements of the PPIP Act or the HRIP Act, if applicable. [18]

PPIP Act, Part 4 dealt with the appointment and functions of a Privacy Commissioner. Nothing in the PPIP Act or the HRIP Act authorised the Privacy Commissioner to require any person or public sector agency to disclose Cabinet information or Executive Council information. [19]

The HRIP Act applied to public sector agencies and private sector persons (“organisations") that were health service providers or that collected, held or used health information. [20] Such organisations were required to observe a series of “Health Privacy Principles” (HPPs) in handling “health information” in their possession. [21] “Health information” was defined in the HRIP Act as a class of “personal information”. [22]

Part 5 of the PPIP Act established the circumstances in which a public sector agency’s conduct in respect of privacy and personal information was subject to review. It applied to the following conduct:

Section 53 relevantly provided:

Section 55(1A) provided:

Sections 53(1A) and 55(1A) were inserted into the PPIP Act by the 2010 Amendment Act.

An aggrieved person’s entitlement to internal review under s 53 of the PPIP Act was also enlivened where a public sector agency contravened an HPP. Part 3 (Provisions for public sector agencies), s 21 of the HRIP Act provided:

At the request of the agency concerned, the internal review could also be undertaken by the Privacy Commissioner. [24]

The definition of “public sector agency” in PPIP Act, s 3 was amended by the enactment of the Members of Parliament Staff Act 2013 (NSW) [25] which inserted sub-section (a1) as follows:

“[P]olitical office holder” in s 3 of the Members of Parliament Staff Act means, among others, a “Minister”.

The Administrative Decisions Tribunal (ADT) had jurisdiction in respect of AQO’s application for external review. [27] The ADT was abolished on 1 January 2014, the day NCAT was established. [28] However, because AQO’s application for external review constituted “part heard proceedings”, [29] the person or persons constituting the Tribunal continued, on and from 1 January 2014, to hear and determine the matter, sitting as NCAT. [30]

In the Second Reading Speech to the Bill which became the PPIP Act, the Attorney General, the Hon Jeff Shaw, said:

In the Second Reading Speech to the Bill which became the HRIP Act, the Treasurer, the Hon Michael Egan, relevantly said:

Before the Tribunal, AQO contended the Minister fell within the definition of a “public sector agency” within the HRIP Act because the accounts of the Minister’s office related to him or his functions, the Auditor-General might audit those accounts under the Public Finance and Audit Act 1983 (NSW) and/or the Minister had power under that Act to request the Auditor-General to do so. [33]

The Minister submitted that the Tribunal had no jurisdiction to review any of the conduct alleged. He argued that the legislation was concerned with the conduct of public servants and that the definition of “public sector agency” did not refer expressly to a Minister, which would have been an easy matter for the legislature to achieve. [34] He also relied on extrinsic materials relating to the insertion of ss 15(6), 53(1A) and 55(1A) into the PPIP Act to confirm what he contended was the ordinary meaning of the text. [35] In addition, he relied on the NSW Law Reform Commission Report published in May 2010, Protecting Privacy in New South Wales (Privacy Report), which said:

Although the recommendation was not implemented, the Minister contended the Privacy Report made it clear that in 2010 the NSW Law Reform Commission understood the Minister was not within the definition of “public sector agency”. [37]

The Minister also contested AQO’s factual assertion that he was “a person in relation to whom, or to whose functions, accounts were kept of administrative or working expenses because an account of his Office's administrative or working expenses on his account related to the Minister's functions”, within paragraph (d) of the definition of “public sector agency”. [38]

The Tribunal approached the construction of the legislation on the basis that both parties accepted the PPIP Act and the HRIP Act were beneficial legislation. [39]

Although paragraph (d) did not expressly refer to a Minister, the Tribunal was of the view that the words of the definition were plain. It was therefore unnecessary to consider extrinsic materials. [40] Rather, the Tribunal held the difficulty was whether the facts established that the Minister was caught by paragraph (d). [41] Applying a wide construction to the expression “in relation to” in paragraph (d), and having regard to the fact that the material before the Tribunal suggested “that the connection between the Minister's functions and the accounts kept of the expenses of his Office [was] a direct one”, the Tribunal was “satisfied that those accounts are kept ‘in relation to’ the Minister's functions” and, too, that they were “accounts with respect to which the Auditor-General has powers”. [42]

Accordingly, the Tribunal accepted AQO’s submissions that the Minister’s office was “caught by [the] paragraph (d) definition of ‘public sector agency’” and that it followed that “the Minister [was] also covered by that provision and [was] therefore a ‘public sector agency’ for the purposes of the PPIP Act and HRIP Act.” [43]

The Minister appealed to the Appeal Panel pursuant to s 80(2)(b) of the NCAT Act.

The Appeal Panel upheld the appeal. It reached its conclusion that paragraph (d) did not extend to a Minister in the following manner.

First, the Appeal Panel referred to principles of statutory interpretation to guide the construction exercise, including that “[t]he language which has actually been employed in the text of the legislation is the surest guide to the legislative intention”, [44] that “[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute” [45] and, too, that regard may be had to context, including “not only other provisions of the same statute but also the existing state of the law, other statutes in pari materia, and any mischief which it can be discerned, by those and other legitimate means, the provision was intended to remedy”. [46]

The Appeal Panel accepted the Minister’s submission that it could consider the 2010 amendment reflected in s 15(6) of the PPIP Act and the 2013 amendment which extended the definition of “public sector agency” to include the staff of a Minister’s office, but did not refer to a Minister. The Appeal Panel held that “[i]t is well established that it is permissible to take account of later amendments to a principal law as an aid in seeking to construe the meaning of the law’s original provisions, where original words lack clarity as to their meaning or scope, or are ambiguous, but not where the later law simply involves an erroneous assumption as to the meaning of the prior law”. [47]

The Appeal Panel then turned to the construction exercise. It first held that the fact that what it described as an “essentially hierarchical” drafting technique had been used in the definition of “public sector agency” which commenced with a “Department”, then listed “types of bodies … of descending significance in the hierarchy of government” was “a strong textual indication that in the NSW laws, a ‘Minister’ was not meant to be covered by categories listed in the definition of ‘public sector agency’ that are subordinate in the list to ‘Department’.” [48] It contrasted paragraph (d) with the Privacy Act 1988 (Cth), which it had earlier described as the “conceptual antecedent of State personal data protection laws”. The Privacy Act definition of “agency” “started with ‘(a) Minister’ and ‘(b) Department’, and then moved on to six other types of agency”. [49]

The Appeal Panel then contrasted the “five readily-identifiable categories of administrative agency … dealt with by categories (a), (b), (c), (e), and (f)” and (g) (albeit that the latter was in a slightly different category), and bodies that fall within paragraph (d), which could only be identified if “a further investigation [was] … undertaken into the question of whether the body is subject to an audit control of the type specified.” [50]

Next, the Appeal Panel referred to what it viewed as the “well understood distinction between the role of a Minister of State and the administrative departments that are subject to the oversight or direction of the Minister”, one “reflected in the Macquarie Dictionary definition of Minister (4th ed. 2005), ‘Minister – a person appointed by (or under the authority of) the sovereign or executive head of government to some high office of state, especially to that of head of an administrative department’.” It found that “[o]n its face, the definition of ‘public sector agency’ is concerned with bodies connected with the day to day administration of government, and paragraph (d) is seeking to pick up the miscellany of committees and bodies that form part of the administration of government that do not neatly fall into the categories the subject of the other parts of the definition of ‘public sector agency’.” [51]

The Appeal Panel also took into consideration the fact that “at a number of points the Parliament has sought to delineate with some care relationships and areas of government that are subject to the operation of the Act.” It referred to PPIP Act, s 62 and HRIP Act, s 68, each of which, as I have said, impose criminal sanctions on “public sector officials” in relation to the corrupt disclosure or the corrupt use of personal and health information. It noted that the definition of “public sector official”, “covers, among others, persons ‘appointed’ to a statutory office by the Governor, or a Minister’ ((a)); ‘a person who is an officer of the Legislative Council or the Legislative Assembly or who is employed by (or who is under the control of) the President of the Legislative Council or the Speaker of the Legislative Assembly, or both’ ((e)).” [52]

In the Appeal Panel’s view, “[t]hese provisions point to an intention, at least in relation to corrupt use and disclosure sanctions, to differentiate between the roles of the Governor, a Minister, and the presiding officers of the Parliament on the one hand and, on the other hand, the role of those who are appointed by them to perform statutory functions or are employed under them.” Accordingly, “[b]y parity of reasoning with the conclusion reached by the Tribunal in this case in relation to Ministers, they would be a ‘public sector agency’ within the meaning of the PPIP and HRIP Acts if they are subject to audit controls of the kind stipulated in paragraph (d), as some or all of them would most likely be.” [53]

The Appeal Panel concluded that if paragraph (d) had the meaning the Tribunal accorded to it, an anomalous situation could arise in relation to provisions which conferred exemptions from compliance with the IPPs and the HPPs on certain agencies. [54] It illustrated this proposition by reference to the exemption from compliance given to “law enforcement agencies” and in respect of “law enforcement functions” and observed that similar examples could be given in relation to the other exempt areas. It observed that it was “quite possible” on AQO’s construction that a law enforcement agency would be exempt from review, but the Minister would not. [55]

The Appeal Panel also found some support for a legislative intention that a Minister of the Crown was not to be caught by paragraph (d) in the reference in item (iv) to accounts “with respect to which the Auditor-General may exercise powers under a law relating to the audit of accounts if requested to do so by a Minister of the Crown”. In the Appeal Panel’s view, “[t]his separation of the roles of the Auditor-General and the Minister points, arguably at least, to [that] intention.” That “drafting [also tended] to support an understanding that a Minister of the Crown stands outside the sphere of the ‘persons or bodies’ covered by the provision.” [56]

The Appeal Panel considered that there was a lack of clarity as to the scope of paragraph (d) because of the lack of any “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.” [57] Accordingly, it said it was informative and appropriate to have regard to the “later” amendments. [58]

The Appeal Panel attributed the amendment of s 15 to insert sub-section (6) to a rationalisation exercise undertaken to eliminate an overlap between the Freedom of Information Act 1989 (NSW) (FOI Act) and the IPPs and HPPs, all of which gave rights of access and “alteration” to, in the case of the FOI Act, “personal records” and in the case of the IPPs and HPPs, “personal” and “health information”. The FOI Act applied to information held by government agencies and by Ministers. It conferred a right to apply for amendment of government agencies’ and Ministers’ records. [59] According to the Appeal Panel, the FOI provisions were “transferred” to the PPIP Act and found reflection in s 15(6). [60]

The Appeal Panel concluded that “[t]his amendment clearly points to a legislative understanding that the PPIP Act’s definition in its original form, and, similarly the HRIP Act’s definition, of ‘public sector agency’ did not cover Ministers. The related amendments that except Ministers from the usual obligation to undertake an internal review, and allow for requests for amendment to go straight to the Tribunal for review reflect a similar understanding, see PPIP Act s 53(1A) and s 55(1A).” [61]

Next, the Appeal Panel referred to the 2013 amendment which added sub-paragraph (a1) to the definition of “public sector agency” in the PPIP Act, an amendment which was not also made to the HRIP Act. [62] The Appeal Panel sourced this amendment to a partial adoption of the recommendations in the Privacy Report. [63]

The Appeal Panel held that the fact there was no equivalent to s 15(6) in the HRIP Act did “not alter the cognate character of the two laws, the operation of which is expressly connected by s 21 of the HRIP Act.” [64]

The Appeal Panel concluded:

In the light of this conclusion, the Appeal Panel found it unnecessary to deal with the Minister’s submissions concerning the construction of particular parts of the text of paragraph (d). [65]

AQO relies on three grounds of appeal:

AQO first submitted that the Appeal Panel committed an error of law by reading down the phrase “person or body” in the chapeau to paragraph (d) so as not to include a Minister. He contended that five factors supported the conclusion that the Minister fell within that expression: the text of the legislation, the consequences of the literal meaning the Appeal Panel adopted, the purpose of the PPIP and HRIP Acts, the fact that the PPIP and HRIP Acts are beneficial legislation which should be liberally interpreted and the fact that the effect of the Appeal Panel’s decision was contrary to the principle that statutory rights (referring to PPIP, s 53 and s 55 and HRIP, s 21) can only be displaced by clear words to that effect. He argued that those factors in favour of the Minister’s inclusion outweighed those to the contrary.

Secondly, AQO submitted that the Appeal Panel erred in considering amendments made to the PPIP Act and the HRIP Act in 2013 subsequent to the Minister’s conduct, to AQO’s internal review application and to the initiation of external review proceedings as part of the statutory context informing the construction of the paragraph (d) definition for the purpose of these proceedings.

Thirdly, AQO submitted that the Appeal Panel gave little direct attention to the HRIP Act in its reasons, even though the information contained in the case study in the media release about which he complained predominantly revealed his “health information”. He pointed out that, with only one exception, the contextual and extrinsic aids on which the Appeal Panel relied related to the PPIP Act. He contended that this constituted a further error of law, as even if a phrase under consideration is defined in two Acts in pari materia, the definition in one Act cannot be used to define or extend the meaning in the other Act. [66] AQO submitted that the Appeal Panel’s use of amendments to the PPIP Act to construe the HRIP Act was no longer open once the two Acts were no longer in pari materia.

The Minister submitted that the Appeal Panel did not err in construing paragraph (d) to exclude the Minister, as the text, structure and context of the PPIP and HRIP Acts supported its construction.

The Minister first submitted that the context in which paragraph (d) was found suggested that Parliament took care expressly to extend the respective Acts to apply to Ministers where it intended to so do. The Minister also argued that the context implied that paragraph (d) was not intended to “catch” Ministers by way of an analysis of Ministers’ accounts kept in relation to the expenses of others (in this case, the Minister’s office).

Secondly, the Minister submitted that in contrast to the reference in paragraph (d)(iv) to a “Minister of the Crown”, the “primary parts” of the definition did not contain any express reference to a Minister. He argued the Appeal Panel was correct in stating that this drafting tended to support an understanding that a Minister of the Crown stood outside the sphere of persons or bodies covered by the provision.

Thirdly, the Minister submitted that the structure of the definition of “public sector agency” provided a textual indication that a Minister was not intended to be covered by paragraphs of the definition that were subordinate to the category in paragraph (a), namely a government department or the Teaching Service. In addition, the Minister argued that the various paragraphs of the definition referred generally to bodies rather than persons. He contended that this suggested that for most purposes an individual would not constitute a “public sector agency”. He pointed out that a separate definition of “public sector official”, which clearly referred to individuals, is included in both the PPIP Act and the HRIP Act.

Fourthly, the Minister submitted that the Appeal Panel was correct in concluding that the remainder of the PPIP and HRIP Acts indicated that Parliament sought to delineate with some care relationships and areas of government that were subject to their operation. [67]

Fifthly, the Minister submitted that the insertion of s 15(6) into the PPIP Act in 2010 which expressly extended s 15 to a Minister and the Minister’s personal staff for the limited purposes of amendment of personal information was the only textual indication that the Minister was intended to be bound by the PPIP Act. He contested AQO’s contention that because s 15(6) was inserted into the PPIP Act in 2010, the Appeal Panel should not have had regard to it, on the basis that to do so would perpetuate an erroneous assumption as to the meaning of earlier provisions. Rather, the Minister contended that the Appeal Panel’s approach was consistent with the principle that an amending Act can be taken into account in the interpretation of the prior legislation, to avoid a result that would render the amendment unnecessary or futile. [68]

In like vein, the Minister submitted that the Appeal Panel did not err in referring to amendments made to the PPIP Act and the HRIP Act in 2013 which commenced in February 2014, more than nine months before the Appeal Panel’s decision, as its task was to consider “the conduct afresh based on the evidence and material before it at the time of the hearing.” [69]

Sixthly, the Minister submitted the Appeal Panel correctly placed weight on the fact that the legislature had not adopted either in the 2010 amendment or subsequently, the NSW Law Reform Commission’s recommendation that Ministers be included within the definition of “public sector agency”. [70]

Seventhly, the Minister submitted that the Appeal Panel correctly recognised the cognate character of the PPIP Act and the HRIP Act. He argued that those Acts were relevantly in pari materia in respect of paragraph (d), such that consideration of each would form part of the context of the other and the same construction ought to be accorded to both.

Eighthly, in oral submissions, the Minister submitted that he was not a person “in relation to whom, or to whose functions, an account is kept of administration or working expenses” within the chapeau to paragraph (d). However, he did not seek to challenge the Tribunal’s factual finding that the accounts kept of the expenses of his office were “kept ‘in relation to’” his functions. [71]

The task of statutory interpretation is concerned with giving a statutory provision the meaning that the legislature is taken to have intended it to have. [72] The exercise must begin with a consideration of the text. [73] In Project Blue Sky the plurality explained the exercise as follows:

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. [75]

In Cunneen, the majority referred with approval to Mason J’s reasons in K&S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd, where his Honour emphasised that “[t]he modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise.” [76] “Context” is used “in its widest sense to include such things as the existing state of the law and the mischief which … one may discern the statute was intended to remedy.” [77] Expressions of indefinite connotation are especially susceptible to context and may mean one thing in one legislative context and something quite different in another, such that to ignore context is calculated to lead to error. [78] This passage in Cunneen is apt when considering the interpretation of general words such as “person” in paragraph (d).

The interpretation of the PPIP Act may be relevant to the interpretation of the HRIP Act. In the absence of any context indicating a contrary intention, it is to be presumed that Parliament intended to give the same meaning to the same words when used in a subsequent statute in a similar connection. [79] The two Acts are in pari materia insofar as each applies to the public sector. The HRIP Act was clearly modelled on the PPIP Act. As much is apparent on its face as well as from the Second Reading Speech to the HRIP Act. [80] The two Acts are expressly linked by the fact that complaints about public sector agencies arising under the HRIP Act are dealt with under Part 5 of the PPIP Act. The Second Reading Speech to each Act made it apparent that the mischief their provisions were intended to address was the misuse of information by the government agencies which collected and held it and the establishment of a scheme to deal with the complaints of individuals about such misuse.

It is next necessary to bear in mind that the statutory provision in issue in this case is a definition. The function of a definition is not to enact substantive law, but to provide aid in construing the statute. Statutory definitions should be construed according to their natural and ordinary meaning, without reading in limitations and qualifications unless clearly required by the terms of the definition or its context, for example if it is necessary to give effect to the evident purpose of the Act. [81] It is also necessary to address the language used bearing in mind the functions which the defined terms serve in the operative provisions. [82]

Reading in limitations and qualifications not clearly required by the terms of the definition or its context may defeat the intention of the legislature. However, once it is clear that the definition applies, the only proper course is to read the words of the definition into the substantive enactment and then construe the substantive enactment, whether in its extended or confined sense, in context and bearing in mind its purpose and the mischief that it was designed to overcome. [83]

It is impermissibly circular to construe the words of a definition by reference to the term defined, [84] or to assume the purpose of the Act and then reasoning, as if syllogistically, conclude that a meaning of a definition more consonant with the assumed purpose of the Act should be preferred. [85] In cases where the purpose of legislation cannot be identified, it may be that the “best that can be done is to reason in terms of relative consistency … in accordance with the principles of statutory interpretation adumbrated in Project Blue Sky – to determine which of the two competing constructions of [the definition] is more harmonious overall.” [86]

Finally, in terms of general principle, a subsequent amendment may inform the construction of the original words of a statute to the extent, at least, that the original provision should not be given a meaning which renders the amendment unnecessary, futile or mere surplusage. [87] However, “[a]mending legislation cannot be used as an aid to interpretation in respect of a provision which is unambiguous and care must also be taken to ensure that words in a later statute have not been inserted to remove possible doubt”. [88]

Turning to paragraph (d), no one disputes that a Minister is a “person” and thus, prima facie, within that definition if the other conditions of that provision are satisfied. The Minister does not challenge the factual finding made by the Tribunal that other conditions were satisfied. [89] However, he submits that that does not answer the question whether he was a “person” within the meaning of that general expression in a definition which catches a “public sector agency”. [90]

Like the Appeal Panel, I consider it is necessary to approach the task of construction by first having regard to basic propositions concerning the state polity. Ministers sit at the apex of government. The State Executive Council advises the Governor in the government of the State. Ministers of the Crown for the State of New South Wales are appointed by the Governor from among the members of the Executive Council. [91]

Legislation makes frequent reference to Ministers. Hence, the Interpretation Act 1987 (NSW) makes it clear that “[i]n any Act or instrument … a reference to a Minister is a reference to a Minister of the Crown.” [92] Equally, legislation makes frequent references to “person(s)”. “Person” is defined in s 21 of the Interpretation Act (Meanings of commonly used words and expressions) to include “an individual, a corporation and a body corporate or politic”. AQO did not rely on the Interpretation Act definition of “person” in support of the interpretation of paragraph (d) for which he contended.

However, “[g]eneral words in an Act of Parliament must always be construed in accordance with the circumstances to which the Act is intended to apply”. [93] Further, even though a definition section “does not expressly state that its application is ‘unless the context otherwise requires’, [it] will not be given effect so as to defeat a meaning required by the context of a particular provision.” [94]

I have earlier referred to PPIP Act, s 7 and HRIP Act, s 12 providing that both Acts bound the Crown in right of New South Wales. [95] Such provisions are intended to rebut the general presumption of statutory interpretation that no statute binds the Crown unless the Crown is expressly named therein or unless there is a necessary implication that it was intended to be bound. [96] Neither party referred to either of these provisions, perhaps because in each case where such a provision appears, its effect will turn upon the statutory context. [97]

There is, of course, no reference to a Minister in paragraph (d), save in sub-paragraph (iv) in which context, as the Minister submitted, it is used in contradistinction to the proposition that a Minister is otherwise caught by the definition. With the exception of the references to “person” in paragraphs (d) and (g), all the other entities referred to in the definition of “public sector agency” are “juristic persons [and] … entities which the law would not recognise as persons”. [98]

However, s 15(6) did refer to a Minister. It made it plain that in that context and other related provisions, [99] the definition of “public sector agency” did include “a Minister and a Minister’s personal staff”. Inherent in that amendment was the assumption that absent s 15(6), paragraph (d) in the PPIP Act was not otherwise intended to extend to a Minister. Section 15(6) would have been otiose if the class of persons to whom it refers were already subject to the PPIP Act by virtue of paragraph (d). [100]

Although it is not conclusive, in my view, regard may also be had to the 2013 amendment which inserted sub-paragraph (a1) into the definition of “public sector agency” in the PPIP Act. Although it might be accepted that taking an amendment into account in determining the scope of prior legislation is a curious way of revealing parliamentary intention at the time of passing the earlier provision, [101] where, in the context of remedial legislation, the legislature evinces an intention to expand the ambit of the Act, that is a relevant indication, in my view, of the provision’s otherwise intended narrower operation. In this context the 2013 amendment indicates both a legislative assumption that the PPIP Act did not hitherto extend to the office referred to in the sub-paragraph (a1) amendment and, of course, the improbability that the legislature otherwise intended the definition to extend to a Minister.

It is also relevant, in my view, to recognise that the 2013 amendment was made after the legislature received the Privacy Report stating that the PPIP Act did not apply to a Minister and recommending that it be amended to so apply, yet it chose not to take that course. That inaction is relevant to the legislative history and “tells in favour of not departing from” the meaning the Privacy Report had communicated to the legislature. [102]

Further, in the PPIP Act, s 28(3) drew an express distinction between a “public sector agency” and the Minister who administered it or the Premier. [103] A similar distinction was drawn in the HRIP Act, s 35(4) which referred to “a public sector agency or any Minister”. The latter phrase would be otiose if a Minister was caught by the definition. Indeed, as was pointed out during submissions, on AQO’s suggested construction of paragraph (d), s 28(3) would have the absurd consequence that it referred to a Minister under the administration of the Minister. [104]

AQO submitted that as “Commonwealth agency” was defined in both Acts to mean “an entity referred to in paragraph (a) – (h) of the definition of agency in the Privacy Act 1988 of the Commonwealth”, [105] the fact the latter definition included a Minister demonstrated it was not unreasonable for a person holding such responsibilities to have to comply with privacy principles. A Minister’s role in the Commonwealth Act was not explored, but it might be noted that the reference to a Commonwealth agency in each Act is for the limited purpose of being a recipient of information. [106] In AGU, the Court held that the HRIP Act does not bind the Crown in right of the Commonwealth. By parity of reasoning, the same conclusion would apply to the PPIP Act.

The Appeal Panel held that the definition of “public sector agency” was concerned with bodies connected with the day to day administration of government. In my view that conclusion was not an exercise of impermissible circular reasoning as AQO submitted. [107] Rather, that conclusion was consistent with the nature of the activities such agencies are required to undertake in terms of the “personal information” or “health information” which comes into their possession in carrying out such administration. [108] I have referred to those provisions earlier, but, in brief, they include IPPs or HPPs governing how to collect, retain, give access to and use or disclose such information, the making of, and compliance with, codes of practice in relation such information and preparation and compliance with privacy management plans.

In the ordinary course it would not, in my view, be envisaged that a Minister would personally hold information of the nature referred to in either Act, or be required personally to devise such codes or plans to apply uniquely to his or her conduct. Yet that is the logical extension of AQO’s contentions.

A conclusion that the PPIP Act was intended to refer to government departments, rather than the Ministers to whom they reported, is supported by the Second Reading Speech to the PPIP Act. The same conclusion flows independently from a consideration of the HRIP Act.

It is also relevant to recognise that the definitions of “public sector agency” in the PPIP and HRIP Acts are not unique to that legislation. At the time the PPIP and HRIP Acts were enacted, s 3 of the Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act) and s 5 of the Ombudsman Act 1974 (NSW) each contained an hierarchical definition of “public authority” conceptually similar to that found in the PPIP and HRIP Acts, including a definition of “public authority” relevantly identical to the definition of “public sector agency”. [109] Similarly, s 4 of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) contains an hierarchical definition of “agency” referring first to a “public service agency”, [110] but on this occasion, secondly, to “a Minister (including a person employed by a Minister under Part 2 of the Members of Parliament Staff Act 2013.”

The ICAC Act also defined “public official” in an hierarchical manner to mean “an individual having public official functions or acting in a public official capacity”, including:

In contrast, it will be recalled that both the PPIP and HRIP Acts included a definition of “public sector official” to mean any of the following “(a) a person appointed by the Governor, or a Minister, to a statutory office…”. It is more consistent with the structure of the definition provisions in both Acts that if the legislature had intended them to extend to a Minister, it would have evinced that intention by including the Minister in the “public sector official” definition.

However whether or not the legislature included a Minister in the “agency” definition or the “public sector official” definition, each drafting technique having been employed in the similar definition provisions in the ICAC Act and GIPA Act to which I have referred, it would be expected that the definition would have been drafted to take account of the Minister’s position in the State polity.

In my view it was open to the Appeal Panel to have regard to the consequences of AQO’s submission that paragraph (d) extended to a Minister by reference to the hierarchy of “agencies” in that definition to conclude it was improbable that a provision applying to a Minister would appear so far down the pantheon of such bodies.

I accept that the two Acts are remedial legislation and hence should be construed so as to afford to individuals whose information is held by public sector agencies, the protection which the legislature intended, bearing in mind that the task of statutory construction should not be approached by reference to what a judge might regard as desirable policy, imputing that to the legislation and then characterising that as the purpose of the legislation. [111] However, the task remains one of statutory construction. [112] That task should not be obscured by a priori assumptions. [113] The principle is “restrained within the confines of ‘the actual language employed’ and what is ‘fairly open’ on the words used,” [114] and does not permit the court to give a provision a construction that is “unreasonable or unnatural”. [115] For the reasons I have explained, AQO’s construction of paragraph (d) is not open applying conventional principles of statutory construction.

In any event, I would note, there was no suggestion that obtaining an internal review against the Minister was the only way AQO could have an inquiry into the use of what he contended was information personal to him. The Minister submitted without demur by AQO, that there was no contest that the Minister's office, which was never the subject of an internal review application, would been covered by the legislation.

I have already referred to the position of Ministers in the State polity. AQO did not identify any logic in the structure of either the PPIP Act or the HRIP Act which would indicate why the legislature would intend to extend the application of their provisions to the Minister by the apparently random exercise of whether or not the Minister was caught by the complicated route laid out in the paragraph (d) definition of “public sector agency”. As the Minister submitted, it is peculiar, as a starting point in the analysis, that a Minister would be covered via an analysis of the characteristics of the accounts which may be kept in relation to their office and the relationship between those accounts and the Minister’s function.

At one stage in the course of argument, the Minister accepted in response to a question from the Bench that at bottom, his submission was that if the legislature wanted to refer to the Minister, it could easily have done so by using that appellation. While there is a certain Ockham’s Razor appeal to that proposition, as I have sought to explain, the Appeal Panel’s decision was not, as AQO submitted, an impermissible exercise of reading down the word “person” in paragraph (d). Rather, that decision is compelling once one has regard to the text, context and purpose of paragraph (d) considered in the context of each Act as a whole. [116] Taking that approach, it is evident that the legislature did not intend the reference to a “person” in paragraph (d) to extend to a Minister.

The Appeal Panel did not err in so concluding.

I propose the following orders:

BASTEN JA: In April 2012 the respondent Minister issued a press release in relation to proposed changes to the payments for workers’ compensation administered by the WorkCover Authority. Annexed to the media release were two case studies, one of which the applicant claimed related to him and revealed confidential personal information and the content of his health records with WorkCover. He sought “internal review” of the Minister’s conduct pursuant to privacy protection laws, namely the Privacy and Personal Information Protection Act 1998 (NSW) (“the Privacy Protection Act”) and the Health Records and Information Privacy Act 2002 (NSW) (“the Health Records Act”).

The case studies referred to by the Minister in his media release were anonymised. Whether or not the applicant’s complaint has merit, and whether or not the Minister falls within the terms of the legislation, it would subvert the protective purpose of the legislation if the identity of the applicant were to be published in the course of these proceedings. So far, the applicant has been known by the identifier “AQO”. That course was and remains necessary to prevent prejudice to the proper administration of justice and in the public interest, which in this respect significantly outweighs the public interest in open justice. [117] Accordingly the Court should make an order prohibiting publication or other disclosure of information tending to reveal the identity of the applicant, pursuant to s 7 of the Court Suppression and Non-publication Orders Act. [118]

The Minister rejected the application for review on the basis that he did not fall within the definition of a “public sector agency” for the purposes of those Acts and accordingly his conduct was not subject to internal review. In May 2013 the applicant filed an application for review with the Administrative Decisions Tribunal. By the time the matter was determined, on 3 December 2014, the Tribunal had been replaced by the Civil and Administrative Tribunal (“NCAT”). A senior member of NCAT, Mr S Montgomery, upheld the applicant’s submission that the conduct of the Minister was covered by the Acts. [119]

The respondent Minister appealed to the Appeal Panel of NCAT. On 11 August 2015 the Panel, constituted by Acting Judge O’Connor, DP and Emeritus Professor G D Walker, Senior Member, upheld the appeal and dismissed the application for review. [120]

The applicant now seeks leave to appeal to this Court pursuant to s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”). Such an application requires leave of the Court and is limited to an appeal on a question of law. The question, namely whether the conduct of a Minister is subject to the protections provided by the privacy legislation in this State, is clearly a matter of public importance, which has not yet been considered by this Court and the answer to which is by no means clear. There should be a grant of leave to appeal.

In the proceedings in the Tribunal, the Minister was named, rather than referred to by way of his office. Absent some statutory provision to the contrary (and none was drawn to the attention of the Court) that approach was erroneous and the Court directed that the respondent be identified by reference to the office held (being the capacity in which the relevant conduct occurred) and that the applicant file an amended summons to reflect this change. The authorities which state this principle were identified in Sinkovich v Attorney General of New South Wales [121] and need not be repeated.

Because the issue before the Court (and before the Tribunal) was narrowly formulated, limited attention was given to the operation and structure of the Acts. In order to provide a context within which the critical definition operated, it is sufficient at this stage to refer to the primary limitation on disclosure contained in Pt 2 of the Privacy Protection Act:

There are exceptions contained in s 18(1) and exemptions in other provisions. There are other forms of regulation, including those on collection of personal information (s 9) and the retention and security of personal information (s 12). In the present case the application to the Tribunal asserted that the information which was disclosed had been obtained by the WorkCover Authority of NSW or an insurer as the agent for WorkCover. There was also a complaint about the release of the information by WorkCover to the Minister, although the Tribunal proceeded on the basis that the Minister was the only respondent.

It is clear from the language of the regulatory provisions that, with one principal exception to which reference will be made below, the controls are imposed upon public sector agencies. That phrase, which is at the heart of the present proceeding, was, when the complaint was raised in January 2013, defined in s 3(1) of the Privacy Protection Act in the following terms:

Prior to the commencement of these proceedings, there had been only minor amendments to this definition since the enactment of the legislation in 1998. The amendments, which were of no significance for present purposes, omitted par (c), which had referred to “a declared authority under the Public Sector Management Act 1988”, and added the Note at the end of the provision. (Cosmetic changes were also made when the names of particular organisations were varied.) Relevantly for present purposes, par (d) has not been the subject of any amendment. Since the commencement of this proceeding, there has been a further amendment, involving the insertion of a new paragraph (a1) to include “the office of a political office holder”, identified by reference to the Members of Parliament Staff Act 2013 (NSW). No reliance was placed on this amendment in this Court and it need not be addressed.

The structure of the Health Records Act is somewhat different: the conduct may be reviewed on grounds which include a contravention of a “Health Privacy Principle”, the principles being set out in Sch 1 to that Act. The limits on disclosure are identified in cl 11 of the Schedule, which imposes an obligation on “[a]n organisation that holds health information”. The Act applies generally to such organisations, [122] the term “organisation” being defined to mean “a public sector agency or a private sector person.” [123] The Health Records Act contains a definition of “public sector agency” in the same terms as that found in the Privacy Protection Act. [124]

The parties accepted that if the Minister fell within the definition of “public sector agency” it was because, pursuant to par (d)(iii), he was a person in relation to whose functions an account was kept of administration or working expenses, with respect to which the Auditor-General had powers under the Public Finance and Audit Act 1983 (NSW) (“Public Finance Act”).

The Tribunal’s conclusion that the provision was satisfied depended in part on a factual finding made by the Tribunal, based on a document prepared by the Government, known as Ministers’ Office Administration Handbook, [125] and a letter provided by the respondent accepting that an account was kept in the Minister’s office of administration and working expenses. The Tribunal held:

One aspect of the findings set out above requires explanation. The first sentence at [39] identifies the connection between the Minister’s functions and the accounts kept of the expenses as “a direct one.” That involved implicit acceptance of the Minister’s submission that the connecting words “in relation to” in the chapeau to par (d) required “a direct, close and substantial relationship between a person or their functions and the account in question”. [126] As the Minister noted, this argument was not addressed by the Appeal Panel; nor did the submissions in this Court seek to justify a restrictive approach to the nature of the connection required by the commonplace phrase “in relation to”.

The resolution of the issues in this Court does not turn upon the jurisdiction of the Appeal Panel. Nevertheless, counsel for the applicant helpfully sought to outline the somewhat labyrinthine provisions, by which the matter came to be resolved. The jurisdiction of the Appeal Panel is conferred by reference to “an internally appealable decision”. [127] That phrase is defined to mean a decision of the Tribunal over which the Tribunal has “internal appeal jurisdiction.” [128] That phrase is, in turn, defined to mean a decision made by the Tribunal in proceedings for “a general decision” or “administrative review decision”. [129] This language reflects two elements of the jurisdiction of the Tribunal identified as “general jurisdiction” and “administrative review jurisdiction”. [130]

The “administrative review” jurisdiction of the Tribunal is, relevantly, that conferred under the Administrative Decisions Review Act 1997 (NSW), s 9. [131] That provision states that the Tribunal has such jurisdiction over a decision of an administrator “if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision.” [132] The term “enabling legislation” is defined to mean any legislation which provides for applications to be made to the Tribunal. [133]

The legislative chain then takes one to the Privacy Protection Act. That Act provides that a person who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct, which is described as an “internal review”, a phrase which has nothing to do with the Tribunal legislation. [134] Finally, a person who has made an application for internal review, and is not satisfied with the findings of the review, may apply to the Tribunal for a review of the conduct that was the subject of the application. [135]

By this extraordinarily complex chain (which disregards the transitional provisions on the abolition of the Administrative Decisions Tribunal), a member of the community may discover that he or she has a right of appeal to the Appeal Panel. The next question should be whether the appeal is as of right or only by leave. Nor is that question easily answered.

If the appeal to the Appeal Panel were from “an interlocutory decision of the Tribunal at first instance”, [136] it required leave from the Appeal Panel. The Appeal Panel dealt with the matter on the basis that it was not an appeal from an interlocutory decision but an appeal from “any other kind of decision”, pursuant to s 80(2)(b). [137] On the basis that it was such an appeal, it was an appeal as of right on any question of law; otherwise leave was required to raise any other ground. The Appeal Panel stated that a ruling as to jurisdiction fell within the definition of “ancillary decision” in s 4 of the NCAT Act and noted that, for the purposes of s 80(2)(b), the Minister had identified four questions of law. [138] Although the Panel noted that the Minister sought leave to extend the appeal to the extent that any of the grounds involved mixed questions of fact and law, no such leave was granted, and it appears to have been assumed at all stages that the issue of construction was a question of law. The same assumption was made in this Court and may be accepted.

Although nothing turned on it for the purpose of the present application, it is by no means clear that the Minister did not require leave from the Appeal Panel, even if his appeal were limited to a question of law. The relevant provision is to be found in s 80, which provides:

It is clear from the structure of this provision that the first question must be whether the appeal is from an interlocutory decision: the provision distinguishes between such decisions and “any other kind of decision”. The Appeal Panel, however, went straight to the second limb of s 80(2), concluding that the decision was “an ancillary decision”. That was because it was a decision concerning the jurisdiction of the Tribunal. Both terms, “interlocutory decision” and “ancillary decision” are defined terms:

It is true that there is a specific reference to a decision regarding the jurisdiction of the Tribunal in the definition of ancillary decision and it may be inferred that the Appeal Panel thought that the specific reference to jurisdiction determined the issue. However, it appears from the chapeau to the definition of ancillary decision that one must determine that the decision is “other than an interlocutory decision” before coming to specific paragraphs which identify, non-exhaustively, what is meant by the term. If jurisdiction were determined as part of the final determination of a matter by the Tribunal, it might constitute an ancillary decision; however the refusal of a summary dismissal application, albeit based on an alleged absence of jurisdiction, is almost certainly an interlocutory issue, falling within either par (h) or par (i) of the definition of interlocutory decision.

A contrary approach might rely upon what appears to be an internal inconsistency in the chapeau to the definition of ancillary decision, which envisages a decision which is “preliminary to” a final determination but is not an interlocutory decision. It is unfortunate that members of the public, in seeking to resolve disputes before a Tribunal which is meant to facilitate the just, quick and cheap resolution of the real issues in proceedings, [139] and which is required to dispense with formality, [140] are faced with such potentially confusing provisions.

The conclusion reached by the Appeal Panel ultimately turned, not on whether or not the paragraph, read as a whole, applied to the Minister, but whether, as a matter of impression gained from express references to the Minister in other provisions, the Minister did not fall within the concept of “a person or body” in the chapeau to par (d) in the definition of “public sector agency”. The Panel’s conclusion was expressed at [42]:

Whether the Appeal Panel was correct to read down the language of the definition in the way identified above is clearly a question of law. Although the Minister sought to support the reasoning of the Appeal Panel, the submissions before this Court put forward arguments in somewhat different terms. It is convenient to address the issues raised by those submissions.

There was a point at which the parties diverged with respect to the correct approach to interpretation of the statutory definition. However, they commenced with general agreement that questions of interpretation should focus on the text, within its statutory context and having regard to the common elements of the Privacy Protection Act and the Health Records Act. That approach may be accepted, although it would be necessary to consider the justification for drawing inferences as to the construction of the 1998 Privacy Protection Act from language used in the 2002 Health Records Act. Nothing turns on that point, although it will be necessary to consider the effect of amendments on unamended provisions.

Three general points may be made with respect to the text of the definition. First, it does not identify Ministers expressly. Secondly, where there is reference to a Minister, it is only with respect to the powers which the Auditor-General may exercise on request, in par (d)(iv). Thirdly, and more generally, the definition refers, somewhat indiscriminately, to persons, bodies which have legal personality and bodies which do not. Where reference is made to a “person or body”, in pars (d) and (g), they are identified, not by their office or terms of engagement, but by reference to their functions or activities. Thus, par (d) covers “a person… in relation to whom… an account is kept” and “a person in relation… to whose functions, an account is kept”. These descriptions are generic and impersonal, like the reference to “a government department”. Although agencies, whether corporate or unincorporated, can only act through individuals, their activities are sought to be covered regardless of the identity of the individual through whom particular action is taken.

The apparent purpose of par (d) is to cover all persons or bodies who exercise public or governmental functions, a characterisation which is more precisely identified by reference to whether their accounts are audited by the Auditor-General. The comprehensiveness of this approach is apparent from the scheme of the Public Finance Act, pursuant to which the Treasurer prepares, for transmission to the Auditor-General, “financial statements for the general government sector …, being a financial report for the general government sector prepared in accordance with Australian Accounting Standards.” [141] The term “general government sector” is defined in s 4(1) of the Public Finance Act:

Although the scope of that obligation was not explored in the evidence, there is no reason to suppose that such accounts would not include expenditure by each Minister of the government in the exercise of his or her functions as a Minister. At least that may be inferred in the absence of evidence to the contrary. If ever one party was better placed than the other to call evidence on a particular issue, it is the Minister for Finance in respect of the operation of the Public Finance Act and the powers of the Auditor-General. The Parliament has conferred on all members of the public protections in relation to their personal information held by public sector agencies, apparently defined in expansive terms. To give such legislation a purposive or “beneficial” interpretation is to refuse to imply limitations not expressed in clear terms, and to refuse to assume that circumstances exist which are pre-eminently within the power of the respondent Minister to prove. That approach should be adopted to the construction of the definition.

On that understanding of the scope of par (d), the omission of express reference to Ministers of the Crown, or indeed any other office holder, is unremarkable: all would be covered by par (d). It is true that the apparent breadth of par (d) calls into question the need for other elements of the definition. However, there was no attempt in this Court to address that issue and it is certainly not possible to derive from the existence of the other paragraphs in the definition a coherent or plausible basis for reading down the scope of par (d). Rather, its language appears to be deliberately expansive.

The Minister sought to avoid this conclusion by identifying within the paragraphs of the definition some form of “hierarchy” or structure, starting with the most general categories and moving to the more specific. The argument was accepted by the Appeal Panel, which described par (d) as designed to “pick up the miscellany of committees and bodies that form part of the administration of government that do not neatly fall into the categories the subject of the other parts of the definition”. [142] However, if one substituted “generality” for “miscellany” and gave effect to the language of the chapeau to par (d), both the hierarchy and the appearance of structure dissipates.

The third submission for the Minister depended upon reference to other parts of the Act. Thus reliance was placed by the Appeal Panel on the separate definition of “public sector official” in s 3(1) of the Privacy Protection Act. That section referred to persons “appointed by the Governor, or a Minister, to a statutory office” and, separately, “a person who is an officer of the Legislative Council or Legislative Assembly”. [143] This was said by the Appeal Panel to demonstrate an intention “to delineate with some care relationships and areas of government that are subject to the operation of the Act.” [144] That may be so, as the concept of “public sector official” is to be found only in s 62, creating offences of intentionally disclosing personal information otherwise than in connection with the lawful exercise of his or her official functions.

It is not entirely clear what the Tribunal sought to derive from the separate definition adopted for a specific and limited purpose. Indeed, the Appeal Panel did not explain whether or not a Minister, being a person appointed by the Governor pursuant to s 35E of the Constitution Act 1902 (NSW), was a public sector official. However, assuming that a Minister is not appointed to a statutory office, the fact that appointments by a Minister will be public sector officials, says nothing to support the implied exclusion of Ministers from the separate definition of “public sector agency”.

Indeed, the Minister’s submissions were circumspect in their reliance on this aspect of the reasoning of the Appeal Panel; the Minister placed weight upon a different provision as demonstrating careful delineation of relationships. Thus, it was submitted that the exemption in s 28(3) from the restrictions on disclosure of personal information included the following:

Section 28(3) is of greater potential relevance because it uses the term “public sector agency”. However, it deals with a quite limited category of cases, namely where there are two public sector agencies administered by the same Minister and the purpose of the disclosure is to inform the Minister about a matter. It was submitted that because many public sector agencies will, in accordance with the general structure of the executive arm of government, be administered by a Minister, therefore a Minister cannot be a public sector agency. However, the logic does not work unless all public sector agencies are administered by Ministers, in which case it would make no sense to describe a Minister as administering himself or herself. The argument is then circular. The better view is that s 28(3) makes no assumptions about the scope of the definition of public sector agency. It does not cease to have work to do if a Minister is a public sector agency, although it must be dealing with public sector agencies other than the Minister.

The remaining arguments relied on by the Minister depend upon the acceptance of two principles of statutory interpretation, one of which may have a more limited operation than the Minister seeks to give it, and the other of which is at least highly controversial.

The first principle is that a provision of the Act may be construed by reference to a subsequent amendment which does not affect the provision in question, but assumes that it has a particular operation. In support of this principle, the Minister relied upon the well-known statement by Dixon J in Grain Elevators Board (Vic) v Dunmunkle Shire. [145] The question in that case was whether, in a particular year, the Board’s land was subject to municipal rates. Subsequent to the year in question (but before the case was determined) a legislative amendment provided that “land used exclusively for any grain elevator” was not rateable property. Dixon J stated:

This somewhat elliptical statement has been treated with understandable caution in subsequent cases, although often applied. [146] Caution is required because there are a number of assumptions, usually implicit, underlying later legislation. For example, on the facts in Dunmunkle, did the legislature (a) assume that the land was otherwise rateable and confer a limited exemption, or (b) assume that the land was probably not rateable, but seek to resolve any doubt? Thus, in formulating the amendment, it may not have realised that it was conferring a more limited exemption than might have been available under the general law. Furthermore, if a court were satisfied that, absent the amendment, particular land was exempt, would the later amendment impliedly and in part repeal that exemption and do so retrospectively? That might be a more surprising result than the assumption that the legislature took a different view of the scope of rateable land from that adopted by the Court. Nevertheless, accepting that it is permissible to consider the effect of later amendments, careful consideration should be given to the inference properly drawn from the specific legislation.

The second principle relied upon by the Minister was derived from the following proposition in the dissenting judgment of Gageler J in Independent Commission Against Corruption (NSW) v Cunneen. [147]

Reliance on this particular provision was critical to an argument put on behalf of the Minister referring to a statement in a Law Reform Commission Report to the effect that Ministers were not covered by the Privacy Protection Act, and recommending that they should be included in the definition of “public sector agency”. [149] The recommendation was not adopted.

Reliance on that material would be contrary to authority binding this Court. The majority in Cunneen referred to the recommendation in the independent review of the Independent Commission Against Corruption Act 1988 (NSW) (“ICAC Act”) and the assumption as to the proper construction of the section in question and continued: [150]

It is clear from this statement that the majority thought it appropriate to assess for itself the correctness of the reviewer’s interpretation and further thought such material should not be relied upon if not adopted by the Parliament.

The approach of the majority is conventional. In CIC Insurance Ltd v Bankstown Football Club Ltd [151] the joint reasons stated:

Two qualifications should be noted as to the proper reliance on extrinsic material, such as law reform reports. First, as the joint reasons in CIC Insurance made clear, they are to be relied upon to identify the mischief which the legislature sought to remedy, not the existing state of the law. Secondly, use of such material must have regard to the constraints imposed by s 34(3) of the Interpretation Act 1987 (NSW), requiring the Court to have regard to the desirability of persons (in the community) being able to rely on the ordinary meaning conveyed by the text and the need to avoid prolonging legal proceedings without compensating advantage.

If such material can assist in identifying the mischief (and possibly more broadly the purpose) of an amendment, there is some doubt as to how it can properly be relied upon in circumstances where the legislature has not adopted a recommendation proposing an amendment. In Chippendale Printing Co Pty Ltd v Commissioner of Taxation [153] the Full Court of the Federal Court dealt with a question as to whether a limited right of refund for an overpayment of tax under the relevant legislation could be supplemented by an unqualified common law right to repayment. Reliance was placed by the taxpayer (in favour of a broader right of recovery) on a bill which was not passed. Tamberlin J stated: [154]

Finally, it is appropriate to note the carefully phrased reference in the reasons of Gageler J in Cunneen to Fortress Credit, by way of comparison rather than as authority for the proposition he was stating. The passage in question related to the principle that the re-enactment of a provision after judicial consideration may be regarded as endorsement of the judicial interpretation. [156] No issue of earlier judicial interpretation arose in the present case. Nothing is to be gained by reliance on a statement of the law in the Law Reform Commission Report which post-dated the enactment of the Privacy Protection Act by more than a decade and made a recommendation which was not acted upon.

The reliance on amending legislation passed in 2009 cannot be disposed of so readily. That is not because such reliance has greater merit, but because it requires both historical explanation and legal analysis to understand its relevance.

Section 15 of the Privacy Protection Act requires that a public sector agency that holds personal information must, when requested by the individual to whom the information relates, make appropriate amendments to ensure that it is accurate and not misleading. The critical provision, for the Minister’s argument, was s 15(6) which provides:

There was then a simultaneous amendment to s 53 (dealing with internal review by public sector agencies) stating that there was no entitlement to such review of the conduct of a Minister in respect of a contravention of s 15. That amendment, it was submitted, was necessary to avoid the absurdity of the Minister reviewing his or her own conduct. Rather, an aggrieved applicant was required to complain directly to NCAT, pursuant to s 55(1A). The Minister’s principal argument was that, if the general definition of public sector agency included a Minister, there would have been no need for s 15(6). It may therefore be inferred that, in the view of the Parliament, the general definition was more restricted.

Before dealing with the general background to these provisions, it is convenient to address the submission that it would be absurd if the Minister were required to review his or her own conduct. That submission was not predicated on the amendment included in s 53(1A): rather, the absence of any provision in the Act as originally enacted in similar terms to s 53(1A) was said to demonstrate the implausibility of the contention that Ministers fell within the definition of public sector agency. However, it is only absurd if it is to be assumed that such a review would be futile in all events. First, that hardly does justice to the capacity of a Minister of the Crown to reconsider the propriety of his or her conduct in circumstances where it is plausible that a possible breach of the Privacy Protection Act had not previously been identified either by the Minister or his or her advisors. Secondly, the legislature may simply not have adverted to the possibility of the need for internal review of a ministerial decision. Thirdly, the Act does no more than provide a right of internal review by the agency responsible for the conduct: it does not say how or by whom the review will be conducted.

In order to understand the significance of new s 15(6), it is necessary to refer to the circumstances of its introduction. On 1 July 2010 the Government Information (Public Access) Act 2009 (NSW) (“the Government Information Act”) replaced the Freedom of Information Act 1989 (NSW). [157] Provisions from the Freedom of Information Act dealing with amendment of records were then included in the Privacy Protection Act, as a new Pt 6A. At that stage, a right of review was given under the Government Information Act. [158] Further, Pt 6A did not use the language of “public sector agency”, but rather the term “agency”. The definition of “agency”, adopted from the Government Information Act, s 4(1), included at par (b) “a Minister (including a Minister’s personal staff)”. Otherwise, the definition of “agency” adopted a structure and concepts not found in the definition of public sector agency in the Privacy Protection Act.

The final stage in the legislative history was the removal of Pt 6A from the Privacy Protection Act and the insertion of the new provisions, including s 15(6). [159]

Having regard to this history, what is to be made of the amendment affected by s 15(6)? The Minister submitted that, as explained in the joint reasons of Brennan CJ, Dawson and Toohey JJ in Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd: [160]

To similar effect, McHugh and Gummow JJ stated that “under modern practice it is the intention of the legislature when effecting textual amendment of an Act to produce a revised text which thereafter and as to subsequent events is to be construed as a whole.” [161]

So much may be accepted; however, as Commissioner of Stamps itself indicated, the result may not require significant rewriting of the amended Act. In that case, prior to the relevant amendment, a person seeking an opinion as to the duty payable on an executed instrument could require the Commissioner to state his or her opinion. That provision was amended to permit the Commissioner to state an opinion, whether requested to or not. Prior to the amendment, a procedural provision allowed for an appeal by a dissatisfied party by way of case stated, setting forth the question upon which the Commissioner’s opinion had been required and the assessment made by the Commissioner. Whereas that had previously applied to all opinions (because a request was a precondition to the exercise of the power), after the amendment (removing the precondition) it no longer did. Accordingly, where the opinion sought to be challenged had not been the subject of a request, the appeal by way of stated case was unavailable. Two aspects of this case are significant. First, the Court did not construe the procedural provision as having a changed meaning as a result of the amendment to the assessment provision; it merely noted that the procedural provision was not available in all cases, as it had been before. Secondly, and as noted by McHugh and Gummow JJ, “matters of procedure already stand in a special position [162] and rights accrued under repealed legislation are protected by the common law”. [163] The issue as to the varied effect of the procedure arose inevitably because the two provisions were interconnected.

The applicant did not accept that the principle articulated in Commissioner of Stamps had any relevant application to the present circumstances. Rather, counsel submitted that the present case fell within the principle articulated by Gleeson CJ in Carr v Western Australia. [164] Under the Criminal Code (WA), s 570D, evidence of an admission by an accused person was inadmissible unless the evidence was videotaped or the prosecution established a reasonable excuse for not recording the admission. One reasonable excuse was that the accused did not consent to the interview being taped. Gleeson CJ noted that in an earlier case, Nicholls v The Queen, [165] he had himself expressed the view that a provision stating that lack of consent was a reasonable excuse for not videotaping assumed that consent was a necessary condition for the videotaping. From that, the accused sought to argue that, he not having consented to the videotaping, the videotape, and hence the admission, was inadmissible. There was, however, no assumption in the Act to that effect; rather, it needed to be implied that the provision excluding an admission in the absence of a video recording (which should only have been undertaken with consent) should be expanded to exclude a video recording which had been undertaken, but without consent. The argument failed.

It may be accepted that there appears to be an assumption underlying the drafting of s 15(6) that Ministers were not included within the definition of “public sector agency”. However the applicant submitted that the remarks of Gleeson CJ in Carr were then apposite: [166]

Translating those propositions to the present case, the assumption may have been based upon a view of the scope of the definition of public sector agency which, on close examination, may be thought to be flawed. Alternatively, because the newly introduced provisions had, throughout their legislative life, applied with respect to Ministers, it was important that they continue to do so. Accordingly, that consequence should be made explicit, in circumstances where the precise scope of the phrase “public sector agency” was unclear but was not intended to be varied.

As in Carr, it is not known which view was taken, nor would a mistaken view as to the law necessarily be determinative. That is because, in their own terms, the provisions do not overlap: s 15 contains a definition exclusively for its own purposes. One cannot imply an intention to alter the effect of the existing definition of public sector agency from an assumption, combined with a clear intention not to vary the existing definition.

Accordingly, while the Act as amended should be read as a single expression of legislative intendment, the fact that one provision may assume that another has a particular meaning does not convey an implied amendment of the latter provision. Such an implied amendment is neither logically nor practically necessary in order to preserve the integrity of the scheme of the Act. [167] That conclusion reflects the inherent difference between an unstated assumption and an implied limitation on a definitional provision.

Consideration of the issues relied upon by the Minister in this Court is sufficient to dispose of the major arguments relied upon by the Appeal Panel in reaching its conclusion. However, there was one further argument which requires to be addressed. The Appeal Panel considered that, were public sector agency to include Ministers, anomalies might arise. That specifically relied upon was an exemption given with respect to “law enforcement agencies” in respect of “law enforcement functions”. The Appeal Panel stated: [168]

There are several problems with this proposition. The first is specific to the example given by the Appeal Panel. There is no exemption for “law enforcement communications”; presumably the reference is intended to be to the exemption from specific prohibitions contained in different sections of the Act, as itemised in s 23. Each subsection of s 23 bar one, however, provides an exemption with respect to a “public sector agency”, whether or not it also constitutes a law enforcement agency. Only subs (1) operates specifically with respect to a law enforcement agency, stating:

It is true that, for example, the Police Minister would not be exempt from the obligation to comply with the requirements of s 9, although the Police Force would be so exempt. The anomaly may be conceded, but it must be of very limited practical significance given the exemption for public sector agencies generally with respect to the more detailed requirements of s 10 with respect to the collection of personal information, the exemption applying if the information is collected for law enforcement purposes. [169]

More generally, there are two kinds of difficulty with reasoning from anomalies. First, it is necessary to consider the possibility that the existence of the anomaly was overlooked by the legislature and hence cannot affect the intended reading of the statute. Secondly, argument by anomaly is often used partially. That is, it is used to bolster the preferred side of an argument without an attempt to consider countervailing examples. Countervailing examples could arise on the Appeal Panel’s construction of the definition of public sector agency, concerning the consequences of the exclusion of Ministers from the protective provisions of the Act. Thus, although a department could not disclose personal information, the Minister could, thereby apparently undermining the principle that such information be protected from disclosure. Further, because it would appear that the Minister accepted that persons in his office would be bound by the Act, a difficult and perhaps practically impossible distinction would have to be made by a complainant as to whether the information had been publicly released by the Minister or by a member of his or her office. Finally, it might be thought anomalous that the terms of the now repealed Freedom of Information Act and the current Government Information (Public Access) Act require Ministers to consider whether to release information which is personal to an individual and which would, under the Privacy Protection Act, be “personal information”, subject to its protections. No doubt the Minister would act on advice, but again, it would be curious if staff in the Minister’s office, and those within a department administered by the Minister, were subject to controls to which the Minister was not subject.

Whilst the surrounding provisions of the legislation cannot be ignored, arguments by reference to possible anomalies are a fragile foundation to read down the otherwise expansive and comprehensive terms of the definition of public sector agency.

The parties were not able to provide assistance as to the history of the structure and language of the definition of “public sector agency”, beyond noting that a very similar definition is to be found in the ICAC Act, by way of an inclusive definition of the term “public authority”. [170]

It may be accepted that there is no express reference to Ministers of the Crown in the definition, nor would they fall within any limb of the definition other than par (d). In the present case, the conduct, by way of public disclosure, of which complaint is made, is the conduct of the respondent Minister. There was, understandably, no suggestion that in publicising the relevant information he was acting otherwise than in exercising the functions of his office.

There was no suggestion in this Court that the findings of the Tribunal that an account was kept of the expenses incurred in the Minister’s office, including expenses incurred in the exercise of his functions, should not have been made. Nor was it disputed that the accounts of those expenses were subject to audit by the Auditor-General. On those assumptions, it would follow that a Minister will fall within the scope of par (d) of the definition. There is no substance in the contentions that other provisions of the Privacy Protection Act require that the definition should be read down so as not to apply to a Minister. Such a course involves an illegitimate rewriting of the definition. It follows that the Senior Member of the Tribunal was correct in his conclusion that the conduct of the Minister was covered and the Appeal Panel was in error.

In those circumstances, the Court should make the following orders:

WARD JA: I have had the opportunity of reading in draft the reasons of both McColl JA and Basten JA. There is no difference between their Honours in the principles of statutory construction to be adopted. Rather, their Honours differ in the application of those principles to the construction of the definition of “public sector agency” in s 3(1) of the Privacy Protection Act.

With respect to the presiding judge’s opposing view, I agree with Basten JA that the appeal should be allowed. In my opinion, the strongest argument in favour of the construction for which the Minister contended, and which the presiding judge considers to be correct, is that s 15(6) of the Act (introduced into the legislation in 2010) expressly includes a Minister within the definition of “public sector agency” for the purposes of that section. However, for the reasons given by Basten JA, I do not consider that this can be taken to convey an implied amendment of the then existing definition of “public sector agency”.

For the reasons his Honour gives, I agree with the orders proposed by Basten JA.