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ALS v Department of Justice and Attorney-General and Office of Fair Trading[2016] QCATA 179

ALS v Department of Justice and Attorney-General and Office of Fair Trading[2016] QCATA 179

CITATION: 

ALS v Department of Justice and Attorney-General and Office of Fair Trading;

DJM v Department of Justice and Attorney-General and Office of Fair Trading [2016] QCATA 179

PARTIES:

ALS

(appellant)

v

DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL AND OFFICE OF FAIR TRADING

(respondent)

and

DJM

(appellant)

v

DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL AND OFFICE OF FAIR TRADING

(respondent)

APPLICATION NUMBER:

APL414-14 and APL415-14

MATTER TYPE:

Appeals

HEARING DATE:

16 June 2015

HEARD AT:

Brisbane

DECISION OF:

Judge Horneman-Wren SC, DCJ

DELIVERED ON:

15 November 2016

DELIVERED AT: 

Brisbane

ORDERS MADE:

  1. The appeal in respect of ground one of the notice of appeal is dismissed;
  1. Application for leave to appeal in respect of grounds 2 and 3 of the notice of appeal is refused;
  1. The respondent’s notice of contention is dismissed.

APPEARANCES:

Mr J A Greggery instructed by Connolly Suthers, lawyers for the applicant

Dr G P Sammon instructed by the Crown Solicitor for the State of Queensland

CATCHWORDS

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL –PRIVACY – where the appellants unsuccessfully brought an action in the Queensland Civil and Administrative Tribunal (QCAT) seeking compensation for alleged breaches of the Information Privacy Act 2009 (Qld) (IPA) – where a complaint against the appellants in relation to their employment at the Office of Fair Trading had been made to the Crime and Corruption Commission – where s 16 and Item 3 of Schedule 1 to the IPA defines a document to which the privacy principles do not apply as including “A document to the extent it contains personal information arising out of a complaint, or an investigation of corruption under the Crime and Misconduct Act 2001” – where the Tribunal member found that the initial complaint was one of misconduct as defined under the Crime and Corruption Act – where Schedule 3 of the IPA sets out Information Privacy Principles (IPP) – where the appellants submitted that a literal interpretation of s 16 would produce absurd results – where the exclusion of certain documents or information within them from the operation of the IPP is how the legislature balanced the competing interests and is reflected in the provisions of the Act – where the interpretation given to those provisions was consistent with a purposive interpretation of s 16 IPA – where the appeal should be dismissed.

The proceedings

  1. [1]
    ALS and DJM (the appellants) were unsuccessful in proceedings in which the Information Commissioner had referred complaints by each of them to the tribunal pursuant to s 176 of the Information Privacy Act 2009 (“IPA”).[1]  The complaints which each of the appellants had made to the Information Commissioner arose from an investigation by the Department of Justice and Attorney-General of a complaint which related to their employment within the Office of Fair Trading (the initial complaint).
  1. [2]
    The initial complaint was sent to an email address at the Crime and Misconduct Commission and to the Executive Director of the Office of Fair Trading. The email was purportedly sent from a “Jenna Woods”. Before the tribunal it was common ground between the parties that “Jenna Woods” was apparently a pseudonym.
  1. [3]
    The complaints which the appellants each made to the Information Commissioner were that in carrying out an investigation into the initial complaint the Department breached the Information Privacy Principles contained in the IPA. They sought compensation.
  1. [4]
    In finding that the complaints were not substantiated, the tribunal made the following findings:
  1. That by operation of sections 15 and 16 of the IPA, together with item 3(d) of Schedule 1 to the IPA, any document created in the investigation of the initial complaint that came into existence subsequent to the initial complaint that contained personal information of the appellants was not subject to the Information Privacy Principles (the s 16 conclusion).[2]
  1. That none of Information Privacy Principles 1, 3, 4, 8 or 9 were breached by the Department in its investigation of the initial complaint (the IPP breach conclusion).[3]
  1. Preliminary to the finding that none of the Information Privacy Principles were breached, that:
  1. (a)
    The Department did not breach any obligation that it had under s 44 of the Crime and Corruption Act 2001 (the s 44 obligation conclusion);[4] and
  1. (b)
    It was not unreasonable or unnecessary to disclose information about those parts of the allegations in the initial complaint regarding the appellant’s sexual orientation or past relationship (the disclosure conclusion).[5]
  1. [5]
    The appellants appeal from the s 16 conclusion and seek leave to appeal from each of the IPP breach conclusion, the s 44 obligation conclusion and the disclosure conclusion.[6]
  1. [6]
    The tribunal also found that ss 4 and 5 of the IPA, together with s 44 of the Crime and Corruption Act, did not operate such that the collection of the appellants’ information in the investigation of the initial complaint was not governed by the Information Privacy Principles in the IPA (the CC Act conclusion).
  1. [7]
    The respondent filed a Notice of Contention in which it contends that the tribunal erred in the CC Act conclusion and seeks to have the tribunal’s decision affirmed on the grounds rejected by the tribunal at first instance.
  1. [8]
    For the reasons which follow, the appellants’ appeal against the s 16 conclusion should be dismissed, and leave to appeal should be refused in respect of the other grounds. The respondent’s challenge to the CC Act conclusion should also be dismissed.

The Initial Complaint

  1. [9]
    The initial complaint received from ‘Jenna Woods’ was in the following terms:

Subject: Official Misconduct

  • ALS, as Manager, Fair Trading was on the panel as the chair and delegate that selected and promoted his former lover and also current housemate, DJM.
  • Staff were directed to pick DJM up and bring him to work when ever ALS was away on business as they used the company car fortransport to and from work.
  • ALS also used the excuse of conducting compliance checks at the gay pubs to trawl for contacts.
  • In the MOG moves ALS evicted the other A03 in the office without any due process in favour of taking his flatmate and joint owner of his properties with him.
  • This is wrong and I continue to be disadvantaged due to this action. Promotion and transfer even laterally should be done fairly and seen to be done fairly.

The Investigation of the complaint

  1. [10]
    In her reasons, the learned Senior Member set out the detail of the investigation of the complaint between paragraphs [14] and [45]. There is no challenge made to the learned Senior Member’s recitation of those details. They were as follows:

[14] Before looking at the application or otherwise of the privacy principles to the collection and disclosure of the Applicants personal information, it is useful to consider how the investigation of the complaint was undertaken.

[15] The complaint came via email to the Executive Director Fair Trading Operations. It was also addressed to‘[email protected]’. This email address does not exist.

[16] The email was forwarded within the Department to Mr Jim Meyers who at the time was employed by the Department as the Acting Director Workforce Integrity Unit. Mr Meyers provided a statement and gave oral evidence at the hearing.

[17] Mr Meyers referred the complaint to the Crime and CorruptionCommission (‘CCC’). He said he did this for two reasons. Firstly, the complainant had apparently intended to send the email to the CCC (but had used the wrong email address) and secondly as it appeared to be a complaint of official misconduct he was required by legislation to refer it.

[18] Mr Meyers sent an email to the sender of the complaint email ‘Jenna Woods’ asking for more detail but he received no response. Both parties accept ‘Jenna Woods’ was apparently a pseudonym.

[19] On 19 March 2010 the CCC referred the complaint back to theDepartment to deal with. The referral was via a document headed ‘Matters assessed’. This document set out four allegations and categorised each as ‘allegations of official misconduct’ as follows:

1. Failure to declare interest/using authority in situation where conflict of interests exists – ALS was on a panel as the chair and delegate that selected and promoted his former lover and current housemate.

2. Misuse of official vehicle – ALS directed staff to use a government vehicle to give his former lover and housemate transport to and from work.

3. Inappropriate use of authority/failure to carryout duties obligations for personal benefit or the benefit of a significant other – ALS used the excuse of conducting compliance checks at gay clubs to trawl for contacts.

4. Inappropriate use of authority/failure to carryout duties obligations for personal benefit or for the benefit of a significant other – ALS evicted an officer without due process in favour of taking his flatmate and joint owner of his properties with him.

[20] The document recorded that ‘the matter was appropriate for DEEDI to deal with, subject to the CMC’s monitoring role and the CMC was to be advised of the outcome’.

[21] The complaint was discussed at a meeting of the Department’s

Assessment Committee on 23 March 2010. The case assessment form produced out at that meeting indicates that the complaint was considered to involve allegations of conduct that if proven would amount to misconduct.

[22] The assessment document is not fully complete as it does not indicate the next step to be taken. It is nonetheless apparent that following that meeting, the task of making preliminary enquiries about the complaint was given to Mr David Gollen who at the time was employed by the Department as the Principal Investigation Officer, Corporate Services. Mr Gollen also provided a written statement and gave oral evidence at the hearing.

[23] Mr Gollen was asked by the head of the Complaint Management Team to arrange for initial enquiries to be made regarding:

a) The process whereby DJM was appointed;

b) The use of government vehicles to transport DJM to an from work in ALS’s absence;

c) Removal of an officer from a position without due process to subsequently appoint his housemate;

d) ALS using the excuse conducting ‘compliance checks’ at gay clubs to ‘trawl for contacts’.

[24] Mr Gollen’s evidence was that he did not do anything immediately because there were other matters of higher priority that required investigation.

[25] In July 2010, he made enquiries with the HR Department to obtain employment history records for the Applicants. He also obtained documents in relation to the selection process whereby DJM was promoted. This included the selection report that recommended DJM’s promotion. He noted that ALS had signed the report as a panel member (but not the chairman).

[26] These documents were relevant to the allegation that ALS had favoured DJM in his promotion.

[27] Mr Gollen’s evidence was that the employment and HR selection panel documents gave factual substance to the complaint in that:

  • The Applicants shared the same residential address; and
  • DJM had been appointed to the position of A03 and ALS although not the chairman was a member of the selection committee.

[28] Mr Gollen also says he made enquiries about where vehicle running sheets and compliance check records were held. These documents were relevant to the allegation that a government vehicle was being used to ferry DJM to and from work and that ALS had been using a government vehicle to trawl gay bars under the guise of doing compliance checks.

[29] Mr Gollen said that his enquires revealed that the records were held in the Townsville office and he did not want to call for them at this stage as they may have alerted ALS or DJM to the investigation.

[30] In November 2010, Mr Gollen prepared a memorandum to Mr Meyers in which he set out his findings and made a recommendation that an external investigator be engaged to conduct further enquiries.

[31] This recommendation was accepted and the Department engaged Contingent Events Integrity Solutions (‘Contingent Events’) to conduct the external investigation.

[32] The Applicants say that the preliminary enquiries carried out by Mr Gollen were inadequate and did not comply with his statutory obligations. They say that because he did not carry out preliminary investigations required by s 44 of the CCC Act, any argument that carrying out an investigation pursuant to that section relieved the Department of compliance with the privacy principles must be rejected. They also say that the failure to carry out proper preliminary enquiries resulted in breach of the privacy principles in engaging Contingent Events and also the investigation carried out by Contingent Events. These arguments are dealt with below.

[33] In November 2010 Contingent Events were provided with terms of reference and were engaged to commence the investigation on Monday 6 December 2010. Mr Gollen says he phoned ALS on the preceding Friday 3 December to advise him that an investigation would be starting on the Monday.

[34] Mr Gollen also sent emails on 3 December to the persons who had been identified in the terms of reference to be interviewed by Contingent Events. The email noted relevantly that:

  • They had been identified as someone who may be able to assist with an investigation into allegations concerning conduct of ALS.
  • It was stressed that they were only allegations and may or may not have had any basis.
  • They could expect to be contacted by Contingent Events.
  • They were asked to cooperate and to keep their involvement strictly confidential.

[35] The terms of reference relevantly:

  • Set out the four allegations in full.
  • Set out the findings of Mr Gollen’s preliminary enquiries.
  • Instructed Contingent Events to gather information to demonstrate in the investigators opinion, whether or not the evidence supported the allegations.
  • Provided the documentation that had been gathered by Mr Gollen.
  • Recommended that they obtain vehicle running sheets and compliance check records believed to be held in Townsville 'in conjunction with any further investigation process’.
  • Asked in undertaking the investigation to consider the requirements of the CCC publication ‘Facing the Facts’ (a CCC guide for dealing with suspected official misconduct in Queensland Public Sector agencies) and ensure in accordance with that document that:

o The material and information gathered during the investigation is treated sensitively and appropriately secured.

o The investigation is conducted in accordance with the Invasion of Privacy Act 1971.

o Interviewees are informed of the need for confidentiality on their part.

  • They were given instruction to take reasonable steps to interview:

o ALS;

o Cheryl Black (Chair of the Selection Panel);

o Bill Nason (Member of the Selection Panel);

o DJM; and

o Other departmental staff and/or external parties who may have information of relevance to the investigation eg staff that may have been involved in ferrying DJM to and from work.

[36] Contingent Events obtained statements from Department employees Cheryl Black (who had also been the chair of the selection panel), Costa Aivaliotis, and Rachel Morley. They also carried out telephone interviews with Tim Schuurs (who was at the time the Principal Human Resources Manager) and William Nason who was the other member of the selection committee.

[37] They also interviewed the Applicants.

[38] All of the witnesses (except William Nason) were advised of the four allegations and asked to comment. Mr Nason was informed only of the allegation concerning the alleged favouritism to DJM in his selection and promotion to the A03 position.

[39] The Applicants were interviewed a second time to clarify the nature of their relationship. During the second interviews they admitted having had an intimate relationship in the past.

[40] Contingent Events found that:

  ALS misused his position, work time and/or government vehicles for private purposes.

  • There was sufficient evidence to substantiate that part of the allegation that ALS and DJM are former lovers and at the time of the selection process for the A03 position, both were living together in a residence owned by ALS.
  • There was sufficient evidence to substantiate the allegation that ALS was on the selection panel that selected his current flatmate and former lover DJM to a permanent A03 position. ALS also acted as the Departmental delegate who signed off on the appointment.
  • The evidence collected revealed that ALS failed to appropriately manage a conflict of interest in conjunction with that same selection and recruitment process.
  • There was insufficient evidence to substantiate the allegation that ALS directed the misuse of a government vehicle in connection with the transport of another party.
  • There was insufficient evidence to substantiate that’.

  ALS misused his position, work time and/or government vehicles for private purposes.

[41] This report was provided to Mr Gollen in January 2011.

[42] Ultimately the report was provided to Mr David Ford, Deputy Director of the Department for consideration as to any action that would be taken against ALS.

[43] In his letter to ALS in February 2011 Mr Ford advised he had made the following findings:

  • The following allegations were not substantiated.
  1. That ALS was responsible for the displacement of an A03 employee without following due process during machinery of government changes.
  2. That when ALS was away on business he directed other staff to use a government vehicle to ferry DJM to and from work.
  3. That ALS misused his position, work time and the government vehicle trawling gay bars for contacts under the guise of conducting compliance checks.
  • These allegations were perceptions on the part of the complainant and there was no evidence to support the claim.
  • The allegation that ALS was on the selection panel that selected his current flatmate and former lover DJM to a permanent A03 and was the Departmental delegate that signed off on the appointment, was substantiated.
  • It was substantiated on the basis that whilst ALS did declare his friendship with DJM to the HR Manager (Mr Schuurs) and Mr Schuurs had approved for him to be on the panel, he considered ALS had failed to appropriately manage the conflict of interest in relation to the selection process in that:
  1. He failed to fully disclose the extent and duration of his past relationship as well as his current friendship with DJM; and
  2. There could also have been a lack of independence between Mr Nason (who ALS had selected to be the independent external member on the panel) and DJM. He said this was based on information provided in the witness statements that Mr Nason was ALS’s friend and as such had visited his private residence when DJM resided there. It was possible he said that DJM and Mr Nason had personal interaction outside the work environment.

[44] Mr Ford advised he would not proceed to any formal disciplinary action but would instead caution ALS to ensure he was familiar with the Department’s code of conduct in relation to conflict of interest issues.

[45] Subsequent to the investigation and the outcome the Applicants expressed through a number of forums their concerns about the manner in which the complaint was investigated and their treatment by the Department during the process. These included complaints to Mr Meyers and other departmental staff, a privacy and code of conduct complaint, workers compensation applications and complaints to the Ombudsman.

The appeal against the s 16 conclusion

  1. [11]
    Section 15 of the IPA defines the term “document” for the purposes of that Act to not include “a document to which the privacy principles to not apply”.
  1. [12]
    Section 16 defines “a document to which the privacy principles do not apply” to mean a document mentioned in Schedule 1 to the Act. Schedule 1 sets out a number of documents to which the privacy principles do not apply. They included, at the relevant time,[7] by item 3(b) to the schedule;

“A document to the extent it contains personal information arising out of… a complaint, or an investigation of corruption under the Crime and Misconduct Act 2001”.

  1. [13]
    The learned Senior Member found, and it did not appear to have been contended otherwise by the appellants, that the initial complaint was one of misconduct as that term is defined by the Crime and Corruption Act.
  1. [14]
    The appellants had submitted that a literal interpretation of s 16 would produce absurd results, including that the respondent in investigating a “mere allegation of misconduct” would not be required to:
  1. (a)
    conduct an investigation by collecting personal information in a way that is fair or lawful (IPP 1);
  1. (b)
    take steps to ensure that the collection of personal information is relevant for the purpose of the investigation (IPP 3);
  1. (c)
    take all reasonable steps to prevent unauthorised use or disclosure of the personal information to any person (IPP 4);
  1. (d)
    use the personal information only for the purpose of an investigation into the alleged misconduct.[8]
  1. [15]
    The learned Senior Member rejected that submission. In doing so she accepted the respondent’s submission that even if the Information Privacy Principles do not apply, the investigation of the complaint is not without constraint, citing the provisions of the Crime and Corruption Act and the Public Service Act.  The respondent had referred to those Acts as being examples of constraints imposed on any such investigation by the general law.  It had done so in response to the appellant’s submissions as set out above.  Particularly the submission that one of the absurd results produced would be that the respondent, in investigating an allegation of misconduct, would not be required to conduct the investigation by collecting personal information which was fair and lawful.[9]  
  1. [16]
    That was a valid response and the Senior Member’s acceptance of it must be understood in that context. So understood, the appellants’ criticism of the Senior Member’s decision as failing “to provide reasons why the references to the CCC Act and Public Service Act 2008 are relevant to the interpretation of s 16 and the “constraints” which are alluded to”[10] is misplaced.  The relevance of those references is that they were part of a valid response put forward by the respondent to an issue raised in the submissions of the appellants below. 
  1. [17]
    The appellants also challenge the learned Senior Member’s s 16 conclusion on the basis that the reasons “failed to address three of the potential inconsistent outcomes which may follow” from her construction of s 16.[11]  Those further three “inconsistencies” are the three further alleged “absurd results” which had been asserted by the appellants in their submissions below and which are set out  at [14] (b), (c) and (d) above.[12]
  1. [18]
    The first point to note is that any absurdity which the appellants asserted was as to the result of a literal interpretation of s 16; not to any manifest absurdity on the face of the IPA. As Griffith CJ explained in 1904:[13]

“The term ‘absurd’, when used in reference to the interpretation of an Act of parliament, is not used in the sense that the legislature has, in passing the Act, done something which, in the opinion of some persons is absurd, but as indicating that the construction sought to be put upon the Act leads to a manifest absurdity upon the face of it.  The court is not called upon to say whether the legislation is wise or foolish, or whether the individual members of the court would have voted in favour of it, or whether the difficulties in carrying the Act into operation are likely to render it futile.  It is the court’s duty to interpret the language of the legislature, and, no matter how unreasonable the legislation appears to be, it is not the function of the court to express an opinion on the point. ” 

  1. [19]
    The appellants merely asserted that in their opinion it would be absurd that an investigation of a complaint could proceed without those identified requirements. That is not absurdity in the statutory construction sense. There is no merit in that contention.
  1. [20]
    Secondly, having seemingly abandoned asserting those matters as absurdities on the appeal, and instead referring to them as “potentially inconsistent outcomes” the appellants’ own submissions demonstrate that the contention below that there was absurdity in a literal interpretation of s 16 was misplaced.
  1. [21]
    Furthermore, the submissions do not demonstrate anything in the IPA with which a literal interpretation of s 16 and item 3(b) is inconsistent. Pointing to the various Information Privacy Principles themselves does not demonstrate inconsistency when the clear and unambiguous interpretation of s 16 and item 3(b) of the Schedule is that it is the application of those principles which is being expressly excluded in respect of the identified class of documents. Once the application of those principles is excluded, inconsistency cannot be identified by reference to them.
  1. [22]
    One inconsistency which the appellants did assert below and which they assert on the appeal which, if correct, might identify a true inconsistency or absurdity which might favour an interpretation different to that found by the learned Senior Member is that in relation to Information Privacy Principle 11(1)(e)(iv).[14]
  1. [23]
    The learned Senior Member did not deal directly with that submission in her reasons.[15]
  1. [24]
    The appellants submit, as they did below, that the interpretation of s 16 and item 3(b) for which they contend, is consistent with the express provisions of Information Privacy Principle 11(1)(e)(iv). The interpretation for which the appellants contend is:

“That those portions of the IPPs which otherwise inhibit the effective investigation of misconduct are rendered nugatory.  That is, that if the provisions of the IPPs and what is necessary for the effective investigation of misconduct under the CMC Act are in conflict, the agency is relieved of obligation (sic) to comply with the IPPs to the extent of the conflict.”[16]

  1. [25]
    This contention of inconsistency between the interpretation found by the Senior Member and Information Privacy Principle 11(1)(e)(iv) should be rejected. Properly understood, there is no inconsistency.
  1. [26]
    Information Privacy Principle 11(1)(e)(iv) can operate entirely consistently with an interpretation of s 16 and item 3(b) which excludes the Information Privacy Principles from application to documents to the extent which they contain personal information arising out of a complaint, or an investigation of corruption, under the Crime and Corruption Act.
  1. [27]
    Information Privacy Principle 11(1) applies to an agency having control of a document containing an individual’s personal information. It prohibits disclosure of the personal information to an entity other than in the prescribed circumstances. Those circumstances include, by paragraph (1)(e)(iv), where the agency is satisfied on reasonable grounds that the disclosure of the information is necessary for the prevention, detection, investigation or remedying of seriously improper conduct by or for a law enforcement agency. “Law enforcement agency” is defined by the dictionary in schedule five to the IPA to mean:

“Law enforcement agency means—

  1. (a)
    for the purposes of IPP 11(1)(e)—an enforcement body within the meaning of the Privacy Act 1988 (Cwlth) or any entity mentioned in paragraph (b); or
  1. (b)
    otherwise—
  1. (i)
    the Queensland Police Service under the Police Service Administration Act 1990; or
  1. (ii)
    the Crime and Corruption Commission; or
  1. (iii)
    the community safety department; or
  1. (iv)
    any other agency, to the extent it has responsibility for—
  1. (A)
    the performance of functions or activities directed to the prevention, detection, investigation, prosecution or punishment of offences and other breaches of laws for which penalties or sanctions may be imposed; or
  1. (B)
    the management of property seized or restrained under a law relating to the confiscation of the proceeds of crime; or
  1. (C)
    the enforcement of a law, or of an order made under a law, relating to the confiscation of the proceeds of crime; or
  1. (D)
    the execution or implementation of an order or decision made by a court or tribunal”.
  1. [28]
    Many agencies would have control of documents containing individuals’ personal information. Those agencies would come to have control of such documents in many and various circumstances, entirely unrelated to any complaint or investigation of corruption under the Crime and Corruption Act.  The prohibition against disclosure of such information created by Information Privacy Principle 11(1) would, prima facie, apply.  However, if satisfied on reasonable grounds that disclosure is necessary for the prevention, detection, investigation or remedying of seriously improper conduct by or for prescribed law enforcement agency, including the Crime and Corruption Commission, the prima facie prohibition would be removed.
  1. [29]
    The work done by Information Privacy Principle 11(1)(e)(iv) has nothing to do with a document containing personal information which itself has arisen out of a complaint or an investigation by the agency of corruption under the Crime and Corruption Act.  Information Privacy Principle 11(1)(e)(iv) thus sits easily with an interpretation of s 16 and item 3(b) which excludes the application of the Information Privacy Principles to a document to the extent it contains personal information arising out of a complaint or an investigation of corruption under the Crime and Corruption Act.
  1. [30]
    An example illustrates the point.
  1. [31]
    Assume an agency holds two documents, A and B, containing personal information about an individual.  Document A arose out of a complaint or an investigation of corruption under the Crime and Corruption Act.  Document B arose simply out of the day to day operations of the agency.  If there were an investigation of seriously improper conduct by or for a law enforcement agency to which the documents were relevant, then disclosure of the personal information contained in both the documents could be lawfully made.  The information in document A could be disclosed because the prohibition in Information Privacy Principle 11(1) never applied to it because of the operation of s 16 and item 3(b).  The information in document B could be disclosed because the prima facie prohibition which would otherwise apply under Information Privacy Principle 11(1) had been lifted in those circumstances.  In the absence of the exclusion in Information Privacy Principle 11(1)(e)(iv) disclosure of the information contained in document B could not be made; although the disclosure of the information in document A could always be made.
  1. [32]
    Properly understood, the interpretation found by the learned Senior Member is entirely consistent with Information Privacy Principle 11(1)(e)(iv).
  1. [33]
    The interpretation contented for by the appellants has virtually no regard for the language of the statute.
  1. [34]
    It is also virtually unworkable. It would require any agency turning its mind to the application of the Information Privacy Principles, having received a complaint or in the course of an investigation into corruption under the Crime and Corruption Act, to form a view as to whether and what “portions” of the principles “otherwise inhibit” the “effective” investigation and what “portions” were “necessary” for the “effective” investigation.  It would then require the agency to apply the principles, but only to the “extent” to which they were in “conflict” with what was necessary for the effective investigation.
  1. [35]
    The application of such an interpretation, to the extent that it is workable at all, is replete with considerations which may amount to no more than personal opinions. It cannot have been the intention of the legislature to leave the application of the Information Privacy Principles to personal opinion.
  1. [36]
    The appellants’ reference to the evidence of Mr Myers and his agreement that the department was able to comply with the Information Privacy Principles when conducting the investigation is misplaced.[17]  That evidence is not, as submitted by the appellants, contrary to the Senior Member’s finding that the interpretation for which they contended “would result in uncertainty and confusion around the interpretation of what portions of IPPs would inhibit an effective investigation in any given case.”[18]  Mr Myers’ evidence assumed application of the principles.  It had nothing to do with an application of the considerations identified above as to whether the principles are to be applied and if so to what extent, in any particular case which emerge from the appellants’ contended for interpretation.
  1. [37]
    The appellants submits that the learned Senior Member gave a literal interpretation s 16 and Item 3(b) rather than a purposive interpretation as required by s 14A of the Acts Interpretation Act 1954.  The only basis upon which they contend that the Senior Member’s interpretation is not purposive is that the interpretation given, although being in accord with the ordinary and actual meaning of the words used, leads to the absurd results which they assert.[19]  The conclusions against any such absurdity already expressed are, therefore, sufficient to dispose of the submission that the tribunal’s interpretation is not purposive.
  1. [38]
    However, for completeness, it should be said that the Tribunal’s interpretation of s 16 and item 3(b) is purposive.
  1. [39]
    As the respondent correctly identifies, the relevant primary object of the IPA is that set out in s 3(1)(a). It is:

“To provide for the fair collection and handling in the public sector environment of personal information.”

  1. [40]
    As the respondent submits, the concept of fairness in that object requires a balancing of interests.  How the legislature struck that balance is reflected in the provisions of the Act. 
  1. [41]
    Part of how that balance is struck is the prescription of the Information Privacy Principles themselves. Another part is the prescription of the application, or inapplication, of those principles in certain circumstances. The exclusion of certain documents or information within them by operation of s 16 and Item 3(b) is but an example of that. The interpretation given to those provisions by the learned Senior Member is entirely consistent with a purposive interpretation.
  1. [42]
    The appeal against the s 16 conclusion must be dismissed.

Leave to appeal

  1. [43]
    The appellants’ application of leave to appeal may be dealt with briefly.
  1. [44]
    By ground 2(a) they contend that the learned Senior Member erred in finding that the respondent did not breach the Information Privacy Principles which findings were inconsistent with the finding that the respondent failed to take all reasonable steps to ensure Contingent Events was required to comply with the Act pursuant to s 35(1) of the Act.
  1. [45]
    Section 35(1) of the IPA provides:

“An agency entering into a service arrangement must take all reasonable steps to ensure that the contracted service provider is required to comply with Part 1 or 2 and Part 3, as if it were the agency, in relation to the discharge of its obligations under the arrangements”.

  1. [46]
    The learned Senior Member found that the terms of reference provided by the Department to Contingent Events, which included ensuring that the material information was treated with sensitivity and secured, conducting the investigation in accordance with the IPA and informing interviewees of the need for confidentiality, fell short of requiring Contingent Events to comply with the IPA.[20] 
  1. [47]
    However, as the Senior Member observed[21] that failure on the part of the Department simply resulted in the obligations which would have attached to Contingent Events, had it been bound, to instead attach to the Department. 
  1. [48]
    The Senior Member then went on to find that the Department had not breached the Information Privacy Principles. There is nothing inconsistent in those findings.
  1. [49]
    Of course, on the basis that the learned Senior Member correctly resolved the s 16 conclusion, her related findings at [160], [162], [168] and [177] that there was no breach of the Information Privacy Principles 1, 3, 4 and 9, because they did not apply are also correct.
  1. [50]
    By ground 2(b) the appellants contend that the finding that the Information Privacy Principles were not breached is inconsistent with the absence of a finding that the respondent took all reasonable steps to ensure that, having regard to the purpose for which the information is proposed to be used, the information is accurate, complete and up to date.
  1. [51]
    At [175] the Senior Member said:

“As set out earlier in these reasons, I have found that the Department did take reasonable steps in the circumstances to carry out a preliminary investigation before sending the complaint to Contingent Events to investigate.  To the extent that the claim might relate to any disclosure by Contingent Events to the witnesses, I accept as pointed out by the Department that the point of the investigation was in fact to discover the accuracy of the personal information contained in the complaint.  The Department conducted a preliminary assessment to determine that there was some factual basis for the complaint and appropriately continued the investigation”.

  1. [52]
    The application of the Information Privacy Principles was limited to the complaint itself, it having been found that it was not a document to which the s 16 exemption applied.[22]
  1. [53]
    The appellants contend that:

“The heart of the applicant’s case was that the respondent did not do all that was reasonably expected of it to conduct the preliminary investigation under s 44 CMC Act and IPP 8 to ascertain the merit or vexation of the anonymous complaint”.[23] 

  1. [54]
    In my view, this ground may be disposed of in either of two ways.
  1. [55]
    First, given that the learned Senior Member found that the Department had taken reasonable steps in the circumstances to carry out a preliminary investigation before sending the complaint for investigation and that the point of such investigation was to discover the accuracy of the personal information, I would conclude that the finding made by the Senior Member was one that all reasonably steps had been taken.
  1. [56]
    Secondly, if I were wrong in that conclusion and required to determine the issue myself, I would conclude that having taken those identified reasonable steps, a requirement to take other steps which might be postulated by the appellants could not be said to be reasonable. On that basis, I would conclude that the Department did take all reasonable steps. Steps taken which would result in the matter being fully and thoroughly investigated, a reasonable preliminary assessment having been made, are all that can be said to be reasonable in the circumstances.
  1. [57]
    Ground 2(c) that the finding that the respondent did not breach the principles was against the evidence and the weight of evidence is not a ground on which leave should be granted. It is simply an attempt to reargue the case rejected by the Senior Member. As was said in Body Corporate of Nut Tree Hill v Lilley:[24]

“This is not an appeal as of right; therefore leave is necessary.  Leave is not to be given simply because a party desires to reargue a case rejected at first instance.  It is not merely enough to express disappointment of the original decision, or a subjective feeling that justice has not been done.  One must examine the proceedings at first instance to see whether there is a reasonably arguable case of error which, if not corrected, will cause substantial injustice to the applicant.  It is not appealable error to prefer one version of the facts to another, or to attribute more weight to the submissions of witness A than to those of witness B.  Finding of facts will not be disturbed if they have rational support on the evidence.  Where reasonable minds may differ, a decision cannot be properly called erroneous simply because one conclusion has been preferred to another possible view.”

  1. [58]
    Those observations are also applicable to dispose of ground 3 which simply invites the Appeal Tribunal to reach different conclusions of fact to those rationally reached by the learned Senior Member.
  1. [59]
    Ground 3(a) also depended on the appellants succeeding on the “all reasonable steps” argument in respect of IPP 8; which they have not.
  1. [60]
    Leave to appeal should be refused. There is no reasonable argument that the learned Senior Member erred.

The respondent’s notice of contention

  1. [61]
    Because of the appellant’s appeal and application for leave to appeal have failed, it is not strictly necessary to address the respondent’s notice of contention. However, for completeness I will deal with it briefly.
  1. [62]
    The first error of law which the respondent raises is that the learned Senior Member erred in the CC Act conclusion. It contends, as it did below, that ss 4 and 5 of the IPA operates so as to permit an investigation under s 44 of the Crime and Corruption Act to be conducted without being subject to the Information Privacy Principles.
  1. [63]
    Section 44(2) of the Crime and Corruption Act provides:

“A public official must deal with the complaint about, or information or matter (also “a complaint”) involving, official misconduct in the way the public official considers most appropriate, subject to the Commission’s monitoring role”. 

  1. [64]
    Section 4(1) of the IPA provides:

“This Act is not intended to prevent or discourage the giving of access to, or allowing the amendment of, documents otherwise than under this act if the giving of access or the allowing of amendment can properly be done or is permitted or required to be done by law”. 

  1. [65]
    Section 5 of the IPA provides:

“Without limiting section 4, this act does not affect the operation of another Act, and Chapter 3 does not affect the operation of an administrative scheme, whether or not under an Act, that –

  1. (a)
    requires information about personal information in the possession, or under the control, of government to be made available to members of the community; or
  1. (b)
    enables an individual to be given access to or to amend the individual’s personal information in the possession, or under the control, of government;

Whether or not on payment of a charge.

  1. [66]
    Put simply, the appellants’ contention is that s 44(2) of the Crime and Corruption Act requires or permits the Department to give access to documents for the purposes of conducting an investigation.  I see no such requirement imposed, or permission conferred, by s 44(2).  Section 44(2) imposes a requirement to deal with a complaint in the way the public official considers most appropriate; nothing more.  It has nothing to say about whether, or how, documents are to be or may be accessed in dealing with a complaint.
  1. [67]
    Similarly, s 44(2) does not require information about personal information in the possession or under the control of the Department to be made available to members of the community. Nor does it enable individuals to be given access to or to amend their personal information in the possession, or under the control, of government.
  1. [68]
    In its submissions,[25] the respondent seeks to adopt a finding of fact made by the learned Senior Member that “the investigation of misconduct may necessarily involve the personal information of the persons complained about and it would be undesirable if the investigation of complaints was hampered by application of the IPPs.”[26]  The respondent contends that:

“The mandatory requirement of s 44 of the CC Act, read with the finding of fact at [54] as summarised above, means that the Department was required to make available personal information about the applicants in the course of the investigation conducted by contingent events.”

  1. [69]
    This submission exposes the inherent flaw in the appellants’ contention in respect to s 44. If the interpretation of s 44 for which it contends is contingent upon a finding of fact in any particular case, it cannot be that, as a matter of statutory construction, s 44 operates in the way it asserts.
  1. [70]
    In my view, the Tribunal’s rejection of the respondent’s arguments concerning ss 4 and 5 of the IPA and s 44 of the Crime and Corruption Act was correct for the reasons the learned Senior Member expressed.
  1. [71]
    The respondent sought to support its submissions on its challenge to the Crime and Corruption Act conclusion by reference also to s 7 of the IPA.  No reliance was placed upon s 7 in the proceedings below.  I do not consider the appellants ought to be permitted to raise it in the appeal in support of its notice of contention. 

Disposition

  1. [72]
    For all these reasons, the appeal is dismissed and the application for leave to appeal is refused.
  1. [73]
    The respondent’s notice of contention is also dismissed.

Footnotes

[1]ALS & Anor v Department of Justice and Attorney-General Office of Fair Trading [2014]                QCAT 423 (reasons). 

[2]Reasons at [84] and [90].

[3]Reasons at [160], [161], [162], [163], [165], [168], [169], [171], [175], [177] and [178].

[4]Reasons at [109].

[5]Reasons at [133], [143], [147], [152].

[6]The s 16 conclusion is a question of law in respect of which an appeal lies to the appeal               tribunal as of right.  Each of the other findings being findings of fact or mixed fact and law require leave; s 142(3)(b) Queensland Civil and Administrative Tribunal Act 2009.

[7]The Act has since been amended to change the reference from Crime and Misconduct Act               2001 to Crime and Corruption Act 2001 to reflect the amendment to the name of that Act.

[8]Applicant’s outline of submissions below dated 28 April 2014 at para 10.

[9]Respondent submissions below dated 8 May 2014 at para 4(b). 

[10]Applicant’s outline of submissions on grounds of appeal dated 23 March 2015 at para 4.

[11]  Ibid.

[12] Ibid at para 4 and para 10(b), (c) and (d) of the applicant’s outline of submissions dated 28 April 2014.

[13]The President of the Shire of Arapiles v The Board of Land and Works (1904) 1 CLR 679 at               [687].

[14] Applicant’s outline of submissions on grounds of appeal, para 4 and applicant’s outline of submissions dated 28 April 2014, para 12. 

[15]  Although the Senior Member did refer to the operation of information privacy principle 11 in rejecting the Department’s submission in respect of s 44 of the Crime and Corruption Act.

[16]  Applicant’s outline of submissions dated 19 December 2014, para 9, incorporating para 6-14 of the Applicant’s outline of submissions below dated 28 April 2014.

[17]  Applicants outline of submissions on grounds of appeal dated 23 March 2015, paragraph 5.

[18]          Reasons at [83].

[19]  Transcript 1-17, lines 24-27.

[20]  Reasons at [120].

[21]  At [121].

[22]  Reasons at [89] and [174].

[23]  Applicants outline of the submissions dated 19 December 2014, para 10.

[24]  [2012] QCATA 230 at [14].

[25] Dated 10 April 2015, paragraphs [15] and [17].

[26] Reasons [54].

Close

Editorial Notes

  • Published Case Name:

    ALS v Department of Justice and Attorney-General and Office of Fair Trading; DJM v Department of Justice and Attorney-General and Office of Fair Trading

  • Shortened Case Name:

    ALS v Department of Justice and Attorney-General and Office of Fair Trading

  • MNC:

    [2016] QCATA 179

  • Court:

    QCATA

  • Judge(s):

    Horneman-Wren J

  • Date:

    15 Nov 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
ALS & Anor v Department of Justice and Attorney-General Office of Fair Trading [2014] QCAT 423
9 citations
Jump To
Cite 1 - [2014] QCAT 423
Cite 2 - [2014] QCAT 423
Cite 3 - [2014] QCAT 423
Cite 4 - [2014] QCAT 423
Cite 5 - [2014] QCAT 423
Cite 6 - [2014] QCAT 423
Cite 7 - [2014] QCAT 423
Cite 8 - [2014] QCAT 423
Cite 9 - [2014] QCAT 423
Arapiles, Shire of v Board of Land and Works (1904) 1 CLR 679
1 citation
Jump To
Cite 1 - (1904) 1 CLR 679
Body Corporate for Nut Tree Hill v Lilley [2012] QCATA 230
1 citation
Jump To
Cite 1 - [2012] QCATA 230

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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