Australia: NSW Government Bulletin - 26 August 2015

In a recent decision of the NCAT Appeal Panel, Pearce v AQO [2015] NSWCATAP 162, the Appeal Panel had regard to key principles of statutory interpretation in deciding that a Minister did not fall within the definition of a 'public sector agency', for the purposes of the Privacy and Personal Information Protection Act 1998 (PPIP Act) and the Health Records and Information Privacy Act 2002 (HRIP Act).

In April 2012, the appellant, in his capacity as Minister for Finance and Services, issued a media release publicising the release of an issues paper and announcing the establishment of a parliamentary committee to inquire into reform of the workers compensation system.

The media release ended with two de-identified 'case studies' that were said to illustrate excessive benefit outcomes. A problem arose, however, when an individual (the respondent) recognised the details given in one of the case studies as his own and concluded that they must have been provided to the Minister by the insurer or WorkCover.

The respondent applied to the Minister under both the PPIP Act and the HRIP Act for review of the Minister's alleged conduct in obtaining and using the respondent's personal information for the purposes of the media release. The Minister's chief of staff replied to the respondent indicating that no such internal review would be conducted, on the basis that the principles of the PPIP Act and HRIP Act applied only to a 'public sector agency', which the Minister, it was argued, was not. The respondent applied to the Tribunal for external review.

The Tribunal, relying on what it saw as a plain meaning of the words, held that the Minister fell within the definition of a public sector agency under sub-section (d) of the PPIP Act, s 3(1) and the HRIP Act, s 4(1) as the Minister was a person or body in relation to whom, or to whose functions, an account is kept of administration or working expenses subject to audit in one or more of the ways set out in (i) to (iv). The Minister, who had argued for a narrow meaning to be given to the words 'in relation to' and 'functions' and who had made contextual arguments in relation to the intended scope of paragraph (d), appealed.

The appeal primarily concerned questions of statutory interpretation. The difference in views between the Minister and the respondent was described by the Appeal Panel as a familiar "text" vs "context" clash in the modern interpretation of the meaning of statutory provisions.

The principles referred to by the Appeal Panel can be summarised as follows:

  • that the ascertainment of the true meaning of a statutory expression must start with consideration of the relevant text in its statutory context;
  • if that analysis does not clearly resolve the matter, it is permissible to refer to secondary materials and historical considerations to gain assistance in that task;
  • that the principle of beneficial construction does not allow for the substitution of a meaning that cannot be derived from the words used, construed in context, but does allow the making choices as between permissible meanings in favour of the meaning that most advances the objective of the law, and best addresses the mischief the law was designed to remedy; and
  • 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.

The Appeal Panel noted that provisions of both the PPIP Act and HRIP Act pointed to an intention to differentiate between the roles of a Minister and those who are appointed by them to perform statutory functions or are employed under them.

The Appeal Panel concluded that the general words used in paragraph (d) are constrained by their context and paragraph (d) should be read so as not to include within its scope a Minister, the provision being concerned only with 'persons or bodies' that have functions within the ordinary administration of government, and belong to a portfolio administered by a Minister.

The facts also serve as a lesson for all when constructing case studies. A prudent approach may be to combine (and de-identify) elements of several cases rather than de-identifying just one.

To start a conversation about Government Bulletin or issues of interest to NSW government lawyers, join the LinkedIn group NSW Government Lawyers by clicking on this link. Membership is open to lawyers employed in the public sector.

In the media

The impact of the Bail Act (2013) on trends in bail and remand
Reforms to the NSW Bail Act (2013) (including the 'show cause' amendments 1) have had no impact on the NSW remand population, according to a new report released today by the NSW Bureau of Crime Statistics and Research (BOCSAR) (19 August 2015). More...

Helping kids understand the law
A re-vamped website that helps children and young people to navigate complicated legal issues has been launched by Attorney General Gabrielle Upton. Issues such as parental break ups, family violence, criminal issues and property settlements are all issues that can affect children and young people (18 August 2015). More...

Law Society Welcomes State Government Decision to Limit ICAC Jurisdiction
The Law Society of NSW president John Eades has welcomed the government's announcement that it will implement the recommendations of the Independent Panel Report - Review of the Jurisdiction of the Independent Commission Against Corruption [ICAC] (30 July 2015) The decision to limit ICAC's power to make findings of corrupt conduct to cases where the corrupt conduct is "serious", may place reasonable limits on ICAC's power to override fundamental rights and principles (11 August 2015). More...

Securing the future of the ICAC
The ICAC will be given revised powers allowing it to investigate corrupt conduct by non-public officials, in strictly defined circumstances, NSW Premier Mike Baird announced today, releasing the report of the Independent Panel Review of the Jurisdiction of the ICAC (11 August 2015). More...

ICAC powers to be limited after Margaret Cunneen case, Mike Baird announces
NSW premier adopts recommendations of review into corruption watchdog and says its powers will be limited to 'serious corrupt conduct' and days the powers of the Independent Commission Against Corruption will be limited to investigate cases of corruption which come under "strictly defined circumstances" (11 August 2015). More...

District Court Judge Refuses to Allow Police with Guns in NSW Court Room
Following the state government's new protocol allowing police officers to carry guns in court in certain circumstances, District Court Judge Dina Yehia has not allowed Broken Hill police to carry firearms in her court room. Police Association representative Scott Webber reportedly said the arrangement is not in the spirit of the protocol (13 August 2015). More...

Review of domestic violence sentencing
The NSW Sentencing Council will be undertaking a comprehensive review of the sentencing of domestic violence offenders in NSW, Attorney General Gabrielle Upton and Minister for Women and Minister for the Prevention of Domestic Violence and Sexual Assault Pru Goward today announced (10 August 2015). More...

In practice and courts

NSW Justice Department: Lin??dt Café siege inquest continues from 17 August? –
The second section of the inquest into the deaths arising from the Lindt Café siege will be examine bail issues with six NSW Police Force officers appearing today as witnesses. More...

NSW Courts NCAT Legal Bulletin Issue 3 of 2015
Issue 3 of 2015, released on 19 August 2015. More...

ICAC: Public inquiry into corruption allegations involving $1.7 million obtained by TAFE ICT manager starts adjourned
The ICAC's public inquiry to be held as part of its Operation Sonet investigation into allegations that a TAFE ICT manager dishonestly obtained over $1.7 million from the Department of Education and Communities TAFE South West Sydney Institute has adjourned until 7 September 2015 (18 August 2015). More...

ICAC: Operation Sonet public inquiry witness list
The witness list for the Operation Sonet public inquiry. Please note that witness lists are subject to change (14 August 2015). More...

NSW: Claims of victims of crime to be reassessed
The victims of crime who were in the transition between the old Victims Compensation Scheme and the new Victims Support Scheme can have their claims reassessed from 1 September 2015. (18 August 2015). More...

NSW Government to Limit ICAC's Jurisdiction Following High Court Case
The NSW Government has released the Independent Panel Report - Review of the Jurisdiction of the Independent Commission Against Corruption [ICAC] (30 July 2015), which was completed in light of the High Court's decision in Independent Commission Against Corruption v Cunneen [2015] HCA 14. According to the NSW Government, it has accepted and will implement all of the Panel's recommendations. More...

NSW Parliament

Inquiries receiving submissions

Inquiry into the 2015 NSW state election, closes 24 August

Inquiry into Remedies for the serious invasion of privacy in New South Wales, closes 4 September.

Inquiry into Reparations for the Stolen Generations in New South Wales, closes 27 September.

Reports

Legislation Review Digest No 3 of 2015 (Tue 11).

Inquiry into Companion Animal Breeding Practices in New South Wales (report due) (Mon 31)

Government responses due

Ministerial Propriety in New South Wales (response due) (Mon 24)

The conduct and progress of "Operation Prospect" (response due) (Tue 25)

New Regulation - Treasury Laws Amendment (Professional Standards Schemes No. 2)
The Treasury Laws Amendment (Professional Standards Schemes No. 2) Regulation 2015 No. 134 (Cth) amending Regulation makes various amendments to prescribe new professional standards schemes at the Commonwealth level for members of the New South Wales Bar Association. The amending Regulation commenced on 13 August 2015

Published – articles, papers, reports

The impact of the NSW Bail Act (2013) on trends in bail and remand in New South Wales
NSW Bureau of Crime Statistics and Research; Don Weatherburn, Jacqueline Fitzgerald. Examines trends in bail and remand in New South Wales prior to and immediately following the implementation of the Bail Act (2013) on 20 May 2014 and the 'show cause' amendments on 28 January 2015 (19 August 2015). More...

Understanding the local government role in crime prevention
Peter Homel and Georgina Fuller. (2015) Australian Institute of Criminology, Trends and Issues in Crime and Criminal Justice, No. 505. This research offers one of the first detailed insights into the valuable contribution made by local government within the multi-layered crime prevention strategies and initiatives which keep Australian communities safe. More...

Fraud against the Commonwealth: Report to Government 2010-11 to 2012-13.
Penny Jorna and Russell G Smith. (2015) Australian Institute of Criminology, Monitoring Report, No. 24. The Commonwealth Government's Fraud reporting requirements include the annual provision of information to the AIC on fraud incidents experienced by Commonwealth Entities. The AIC then produces an analysis of data and trends. More...

Cases

Wollondilly Residents & Ratepayers Association Inc v Wollondilly Shire Council [2015] NSWCATAD 170
Access to government information - access application - decision to refuse to deal with application - the agency had already decided a previous application for the information concerned. More...

BVS v Sydney Local Health District [2015] NSWCATAD 171
Privacy - Health information - health privacy principle - security - access - use – disclosure. Health Records and Information Privacy Act 2002; Privacy and Personal Information Protection Act 1998. More...

AOZ v Rail Corporation NSW (No 2) [2015] NSWCATAP 179
PRIVACY OF HEALTH INFORMATION – Appeal finding of contravention of Health Privacy Principle 4 – extension to merits - final order – financial compensation, apology. Health Privacy Principle 4(2) (19 August 2015). More...

Johnston v Endeavour Energy [2015] NSWSC 1117
PRACTICE AND PROCEDURE – representative proceedings – validity of opt out notices – where Insurers opted insureds out from existing proceedings – whether solicitor had authority to file opt out notices on behalf of insureds – whether insurer can commence proceedings in name of insured without authority STATUTORY INTERPRETATION – scope and application of s 183 Civil Procedure Act 2005 – general power of court to make any order appropriate or necessary to do justice – whether power broad enough to make orders sought – CONSTITUTIONAL LAW – whether Court engaged in an exercise of judicial power arising under Ch III of the constitution – meaning of 'matter' – whether matter of legitimate and real controversy – issues raise a matter such that the Court can legitimately exercise Federal jurisdiction – Court not precluded from determining relief sought (19 August 2015). More...

Michael Christie v Agricultural Societies Council of NSW Ltd (ACN 150 951 670) [2015] NSWSC 1118
ADMINISTRATIVE LAW – Domestic tribunals – Whether Wednesbury unreasonableness applicable – Whether actual bias required - Whether reasonable apprehension of bias where Disciplinary Committee chairman moving force behind entire process. More...

Davison v State of New South Wales [2015] NSWWCCPD 47
Statutory interpretation; meaning of "seriously injured worker" in s 32A of the Workers Compensation Act 1987; whether that section permits multiple injuries to be aggregated to reach the impairment threshold for seriously injured worker; s 8(b) of the Interpretation Act 1987; whether singular includes the plural; whether contrary intention appears in the legislation. More...

Pearce v AQO [2015] NSWCATAP 162
Appeal allowed. Application for review dismissed. Civil and Administrative Tribunal Act 2013; Freedom of Information Act 1989; Government Information (Public Access) Act 2009; Health Records and Information Privacy Act 2002 Interpretation Act 1987; Privacy and Government Information Legislation Amendment Act 2010; Privacy and Personal Information Protection Act 1998; Privacy Act 1988 (Commonwealth). The respondent considered that the details given in Case Study One related to his specific circumstances. He regarded those circumstances as confidential to him, his employer, the insurer and WorkCover. He concluded that there must have been provision by the insurer or WorkCover to the Minister's office, at that office's request, of the details of his case in an identifiable form. More...

REGINA v OC [2015] NSWCCA 212
STATUTORY INTERPRETATION – principles – legal assumptions – non-alteration of common law doctrines - principle of legality – privilege against self-incrimination – principles of accusatorial system of criminal justice – principle that prosecution must discharge onus and cannot compel accused to assist it – whether the ASIC Act permitted provision of the transcript of an accused's examination under s 19 to persons involved in prosecuting the accused. More...

Legislation

NSW

State Insurance and Care Governance Bill 2015
Legislative Assembly 13/8/2015 Report adopted, Bill passed all stages and awaiting assent. Legislative Council 12/8/2015 Amended Bill returned to Legislative Assembly for concurrence.

State Senate Bill 2015
Legislative Council 13/8/2015 Moved second reading, debate adjourned. This Bill is for an Act to authorise the use of the term State Senate as a reference to the Legislative Council and to authorise the use of the term State Senator as a reference to a member of the Legislative Council.

Bills passed by both Houses of Parliament

Crimes (Sentencing Procedure) Amendment (Firearms Offences) Bill 2015

Regulations and other miscellaneous instruments

Children (Community Service Orders) Regulation 2015 (2015-456) — published LW 14 August 2015

Children (Interstate Transfer of Offenders) Regulation 2015 (2015-457) — published LW 14 August 2015

Subordinate Legislation (Postponement of Repeal) Order 2015 (2015-461) — published LW 14 August 2015

Subordinate Legislation (Postponement of Repeal) Order (No 2) 2015 (2015-462) — published LW 14 August 2015

Children (Detention Centres) Regulation 2015 (2015-474) — published LW 21 August 2015

Crimes (Interstate Transfer of Community Based Sentences) Regulation 2015 (2015-475) — published LW 21 August 2015

Police Regulation 2015 (2015-478) — published LW 21 August 2015

Victims Rights and Support Amendment (Transitional Claims) Regulation 2015 (2015-480) — published LW 21 August 2015

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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Authors
Christine Jones
Kim Nguyen
 
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