A recent decision of the Human Rights Review Tribunal contains
significant developments for employers over their obligations to
withhold and disclose private information.
The decision, Waters v Alpine Energy Limited, has allowed an
unsuccessful job candidate to view information regarding the
recruitment process, including CV's of other candidates. This
has caused a stir in the industry1.
Mr Waters (62) had applied for two positions with Alpine Energy,
where he had previously worked for over 20 years. Both of Mr
Waters' job applications were unsuccessful.
Mr Waters felt that he had been discriminated against due to his
age, and accordingly commenced proceedings under the Human Rights
Act 1993 alleging age discrimination.
Alpine Energy rejected his complaint and matters were proceeding
to a hearing when an issue arose regarding the disclosure of
evidence. In particular, Mr Waters sought information related to
the candidates (including those that were successful), containing
names, addresses, contact details, and other personal information
including employment history, experience, and qualifications.
Alpine Energy refused to disclose certain documents on the basis
that they were confidential information, not within the
company's possession or control, or because the documents had
already been destroyed.
The Tribunal has the power to regulate its own procedure however
it sees fit, and has a broad discretion to receive any evidence
that, in its opinion, would assist in dealing with the matter.
However, the Evidence Act still applies to the Tribunal, under
which the Court (or the Tribunal) can direct that confidential
communication or information cannot be disclosed.
In this instance, the Tribunal ordered disclosure of the other
candidates' information as there was a public interest in
preventing discriminatory conduct being hidden behind the cloak of
confidentiality. Accordingly, Alpine Energy was ordered to produce
all of the information sought by Mr Waters, including the
information held by the recruitment agency.
Interestingly, the Tribunal's order also prevented Alpine
Energy from redacting the names of the other candidates, as the
Tribunal felt the information would be difficult to manage without
The decision creates an interesting precedent for the treatment of
confidential and personal information. The way through this issue
is complex, and it would seem that the available options may differ
depending on whether the applicant was successful (and therefore is
an employee) or unsuccessful.
The decision does not specifically refer to the implications of
the Privacy Act, under which personal information may be withheld.
For example, an agency holding personal information about an
individual is allowed to refuse to disclose information which is
evaluative material, or if disclosure would involve the unwarranted
disclosure of the affairs of another individual. Therefore, there
is an unexamined tension between this decision (which is of
authoritative value in the Employment Relations Authority), the
provisions of the Privacy Act, and where appropriate,
employer's "good faith" obligations under the
Employment Relations Act.
The decision is likely to have wide-ranging implications for
employers and appears to go further than the information disclosure
requirements under the ERA and proposed amendment scheduled to be
enacted later this year.
Accordingly, if you receive a request to disclose confidential
information, we strongly recommend you, first, seek advice, to
ensure that you are meeting your obligations under all relevant
1Water v Alpine Energy Limited 
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
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