CP v New South Wales Ombudsman [2002] NSWADT 103 (20 June 2002)

Last Updated: 8 December 2003

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: CP -v- New South Wales Ombudsman [2002] NSWADT 103 revised - 5/12/2003

PARTIES: APPLICANT

CP

RESPONDENT

Ombudsman's Office

FILE NUMBERS: 023005

HEARING DATES: 13/03/2002

SUBMISSIONS CLOSED: 26/03/2002

DECISION DATE: 20/06/2002

BEFORE: O'Connor K - DCJ (President)

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Freedom of Information Act 1989

Judicial Officers Act 1986

Ombudsman Act 1974

Privacy & Personal Information Protection Act 1998

Public Finance and Audit Act 1983

Public Sector Management Act 1988

CASES CITED: JG v Ombudsman [2002] NSWADT (unreported, 13 February 2002)

Clayton v Ombudsman (1998) 13 VAR 406 (VCAT)

Taylor v Health Services Commissioner [2000] VCAT 1082

Ainsworth v The Ombudsman (1988) 17 NSWLR 276

Commissioner of Police v The Ombudsman, (SC, Sackville AJ, unreported, 9 September 1994)

Botany Council v The Ombudsman, (SC, Spender AJ, unreported, 16 June 1995)

Board of Fire Commissioners (NSW) v Ardouin [1961] HCA 71; (1961) 109 CLR 105

Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1

Coco v R [1994] HCA 15; (1994) 179 CLR 427

Puntoriero v Water Administration Ministerial Corporation (1999)199 CLR 575

Brodie v Singleton Shire Council

Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 180 ALR 145

Moroney v The Ombudsman [1982] 2 NSWLR 591

The Ombudsman v Moroney (1983) 1 NSWLR 317

Alice Springs Town Council v Watts (1982) 50 LGRA 149

Little v Commonwealth [1947] HCA 24; (1947) 75 CLR 94

Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1

APPLICATION: Jurisdiction

MATTER FOR DECISION: Preliminary matter

APPLICANT REPRESENTATIVE: APPLICANT

In person

RESPONDENT REPRESENTATIVE: RESPONDENT

P R Garling SC, barrister

THIRD PARTY

J Gaudin,

ORDERS: 1. The objection to jurisdiction is dismissed.

2. The application is to be relisted for further directions.

Reasons for Decision:

1 The applicant has applied to the Tribunal pursuant to s 55 of the Privacy and Personal Information Protection Act 1998 (PPIPA) for review of the conduct of an entity described by the applicant as `the Office of the Ombudsman'. The Ombudsman appeared at the proceedings. The Ombudsman has objected that the Tribunal has no jurisdiction to entertain the application. This decision deals with that issue. The Privacy Commissioner is a party to the proceedings, as permitted by s 55(7) of the PPIPA. The applicant and the Privacy Commissioner have submitted that the Tribunal does have jurisdiction to entertain the application.

2 At the planning meeting held on 13 March 2002 the parties agreed to a timetable for the presentation of written submissions going to the question of jurisdiction. The parties also agreed that the matter was one appropriate for resolution by the Tribunal on the basis of the written submissions (as to which see s 76 of the Administrative Decisions Tribunal Act 1997). The Ombudsman lodged written submissions on 20 March 2002. The applicant lodged written submissions on 3 April 2002. The Privacy Commissioner lodged submissions on 26 March 2002.

3 Under the PPIPA a person is entitled to apply to the Tribunal for review of the conduct of a public sector agency: s 55. The `conduct' to which this right attaches is defined by s 52, as follows:

`52. Application of Part

(1) This Part applies to the following conduct:

(a) the contravention by a public sector agency of an information protection principle that applies to the agency,

(b) the contravention by a public sector agency of a privacy code of practice that applies to the agency,

(c) the disclosure by a public sector agency of personal information kept in a public register.

(2) A reference in this Part to conduct includes a reference to alleged conduct.

(3) This Part does not apply to any conduct that occurred before the commencement of this Part.

(4) Section 53 (Internal reviews) of the Administrative Decisions Tribunal Act 1997 does not apply to or in respect of conduct to which this Part applies.'

4 Section 53 entitles an aggrieved person to apply for internal review of conduct which is alleged to involve a contravention of the kind set out in s 52(1), and s 54 deals with the role of the Privacy Commissioner in respect of an internal review application. Section 55 deals with external review by the Tribunal, and provides:

`55. Review of conduct by Tribunal

(1) If a person who has made an application for internal review under section 53 is not satisfied with:

(a) the findings of the review, or

(b) the action taken by the public sector agency in relation to the application,

the person may apply to the Tribunal for a review of the conduct that was the subject of the application under section 53.

(2) On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders:

(a) subject to subsection (3), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct,

(b) an order requiring the public sector agency to restrain from any conduct or action in contravention of an information protection principle or a privacy code of practice,

(c) an order requiring the performance of an information protection principle or a privacy code of practice,

(d) an order requiring personal information that has been disclosed to be corrected by the public sector agency,

(e) an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant,

(f) an order requiring the public sector agency not to disclose personal information contained in a public register,

(g) such ancillary orders as the Tribunal thinks appropriate.

(3) Nothing in this section limits any other powers that the Tribunal has under Division 3 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997.

(4) The Tribunal may make an order under subsection (2) (a) only if:

(a) the application relates to conduct that occurs after the end of the 12 month period following the date on which Division 1 of Part 2 commences, and

(b) the Tribunal is satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct of the public sector agency.

(5) If, in the course of a review under this section, the Tribunal is of the opinion that the chief executive officer or an employee of the public sector agency concerned has failed to exercise in good faith a function conferred or imposed on the officer or employee by or under this Act (including by or under a privacy code of practice), the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister (if any) for the public sector agency.

(6) The Privacy Commissioner is to be notified by the Tribunal of any application made to it under this section.

(7) The Privacy Commissioner has a right to appear and be heard in any proceedings before the Tribunal in relation to a review under this section.'

5 The applicant has been the subject of unwanted publicity. He was the officer responsible for making an original determination under the Freedom of Information Act 1989 (FOIA) refusing access to documents (determination affirmed on internal review). The access applicants, four prominent Opposition Members of Parliament, complained to the Ombudsman in relation to the determination, as is permitted (in the Ombudsman's view) by both FOIA and the Ombudsman Act 1974 (the Ombudsman Act). The Ombudsman undertook a preliminary investigation of the complaint. The applicant replied to the Ombudsman's initial enquiries in writing. In the letter the applicant made reference to his operational experience in the agency, his academic and professional qualifications and asserted that he was in a good position as a result to make the determination that he did. Later the Ombudsman decided to undertake a formal investigation of the complaint. His office gave notice of the investigation to the complainants. In accordance with usual procedures, his office supplied the complainants with an account of its preliminary investigation including a copy of the applicant's reply.

6 Two days later details of the contents of the applicant's reply appeared on the front page of a regional daily newspaper, including the text relating to his qualifications and the assertion that accompanied that text. Subsequently the same material was used by one of the MPs in a Parliamentary debate. The applicant states that he and his family were embarrassed and held up to public ridicule by the public airing of this material. The applicant claims that the information in issue was `personal information' within the meaning of PPIPA, was communicated by him in confidence to the Ombudsman, and its disclosure to the MP complainants was in contravention of the Information Protection Principle (IPP) found in s 18 of PPIPA.

7 The relevant principle (PPIPA s 18) provides:

`18. Limits on disclosure of personal information

(1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless:

(a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or

(b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or

(c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person.

(2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it.'

8 "Personal information" is defined relevantly as (section 6) as follows:

`4. Definition of "personal information"

(1) In this Act, "personal information" means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.

(2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics.

(3) Personal information does not include any of the following:

[the exclusions are not relevant to this case]

(4) For the purposes of this Act, personal information is "held" by a public sector agency if:

(a) the agency is in possession or control of the information, or

(b) the information is in the possession or control of a person employed or engaged by the agency in the course of such employment or engagement, or

(c) the information is contained in a State record in respect of which the agency is responsible under the State Records Act 1998.

(5) For the purposes of this Act, personal information is not "collected" by a public sector agency if the receipt of the information by the agency is unsolicited.'

9 The Ombudsman conducted an internal review of the applicant's complaint. In his reasons for decision dated 12 December 2001, the Ombudsman concluded that only some of the information in issue could be said to be personal information within the meaning of PPIPA, noted that there had been no express request that it be treated as confidential, that his office had handled the applicant's communication in accordance with its normal procedures, disclosed the information in the performance of its statutory functions and was satisfied that there was no contravention of PPIPA.

10 The applicant was not satisfied by this response, and as a result lodged an application for review of the conduct in the Tribunal on 9 January 2002.

11 The particular issue with which this decision is concerned is whether the Tribunal has jurisdiction to hear and decide the applicant's application for review. In the application the applicant seeks the following orders: apology, change to the respondent's practices in relation to disclosure of communications, reimbursement of application fee and damages.

Apparent Scope of ss 35A and 35B

12 Sections 35A and 35B of the Ombudsman Act provide:

`35A. Immunity of Ombudsman and others

(1) The Ombudsman shall not, nor shall an officer of the Ombudsman, be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings in respect of any act, matter or thing done or omitted to be done for the purpose of executing this or any other Act unless the act, matter or thing was done, or omitted to be done, in bad faith.

(2) Civil or criminal proceedings in respect of any act or omission referred to in subsection (1) shall not be brought against the Ombudsman or an officer of the Ombudsman without the leave of the Supreme Court.

(3) The Supreme Court shall not grant leave under subsection (2) unless it is satisfied that there is substantial ground for the contention that the person to be proceeded against has acted, or omitted to act, in bad faith.

35B. Application to Supreme Court

(1) Where any question arises as to the jurisdiction of the Ombudsman to conduct an investigation or proposed investigation, the Ombudsman, or any interested party, may apply to the Supreme Court for a determination of that question.

(2) On an application made under subsection (1) the Supreme Court may make such order as it considers appropriate.

(3) For the purposes of subsection (1), the following persons are interested parties:

(a) the public authority the conduct of which is the subject of the investigation or proposed investigation,

(b) the head of that public authority,

(c) if the investigation arises from the making of a complaint under section 12 (1), the complainant.

(4) This section has effect notwithstanding section 35A.'

13 There is debate between the parties as to what is the correct description of the respondent. The debate is seen as important by the applicant as it provides a basis for an argument that ss 35A and B of the Ombudsman Act do not confer protection on the `Ombudsman's Office' as it does not refer to that office. I regard the debate as not ultimately involving a question of significance. I accept the Privacy Commissioner's submission that a distinction can be discerned in the scheme of PPIPA as between a public sector official and a public sector agency. PPIPA frequently refers to the Ombudsman's Office: see s 3 (definition of investigative agency), s 23(6), s 28(1) and s 42(3). I accept that the Ombudsman's Office can be viewed as an entity separate from the Ombudsman within the meaning of para (d) of the definition of `public sector agency' in s 3 of PPIPA, which is as follows:

`"public sector agency" means any of the following:

(a) a government department or the Education Teaching Service,

(b) a statutory body representing the Crown,

(c) a declared authority under the Public Sector Management Act 1988,

(d) a person or body in relation to whom, or to whose functions, an account is kept of administration or working expenses, if the account:

(i) is part of the accounts prepared under the Public Finance and Audit Act 1983, or

(ii) is required by or under any Act to be audited by the Auditor-General, or

(iii) is an account with respect to which the Auditor-General has powers under any law, or

(iv) is an account 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,

(e) the Police Service,

(f) a local government authority,

(g) a person or body that:

(i) provides data services (being services relating to the collection, processing, disclosure or use of personal information or that provide for access to such information) for or on behalf of a body referred to in paragraph (a)--(f) of this definition, or that receives funding from any such body in connection with providing data services, and

(ii) is prescribed by the regulations for the purposes of this definition,

but does not include a State owned corporation.'

14 The definition of `public sector official' (s 3) is as follows:

`"public sector official" means any of the following:

(a) a person appointed by the Governor, or a Minister, to a statutory office,

(b) a judicial officer within the meaning of the Judicial Officers Act 1986,

(c) a person employed in the Public Service, the Education Teaching Service or the Police Service,

(d) a local government councillor or a person employed by a local government authority,

(e) a person who is an officer of the Legislative Council or 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,

(f) a person who is employed or engaged by:

(i) a public sector agency, or

(ii) a person referred to in paragraph (a)--(e),

(g) a person who acts for or on behalf of, or in the place of, or as deputy or delegate of, a public sector agency or person referred to in paragraph (a)--(e).'

15 The applicant's contention, supported by the Privacy Commissioner, is that the immunity given by s 35A applies only to the public sector official as defined by PPIPA, the Ombudsman, and not to the public sector agency, as defined by PPIPA, the Ombudsman's Office. The argument is that the immunity from suit conferred by s 35A only confers protection on the Ombudsman and the Deputy Ombudsman, but does not give rise to a general protection for the `agency' (i.e. the Ombudsman's Office) from review.

16 The Ombudsman, in reply to these views, contends that s 35A is comprehensive, and argues that there is no such separate entity as the `Office of the Ombudsman' or the `Ombudsman's Office', as such a body has not been established by statute.

17 I do not agree with either of these arguments.

18 The statutory office of `Ombudsman' is created by s 6 of the Ombudsman Act. The provision includes the usual clause, sub-section (8), providing that: `The Ombudsman has and may exercise the functions conferred or imposed on the Ombudsman by or under this or any other Act.' In my view it is conventional in New South Wales government administration, and in government administration elsewhere, for a distinction customarily to be drawn between the holder of a sole office and the staff supplied to the office to support the office-holder in the performance of his or her functions.

19 Often the support staff are described as the `Office of the [office-holder]' or the `The [office-holder's] Office.' This is seen in the Public Sector Management Act 1988, Schedule 1 listing the `Departments' of government for the purposes of that Act. In that list is the `Ombudsman's Office', also in the list are the `Office of the Director of Public Prosecutions', `Parliamentary Counsel's Office' and the `Public Trust Office.'

20 Section 35A confers its immunity on the `Ombudsman' and `officers of the Ombudsman.' In my view, the `Ombudsman's Office' is simply another way of describing the group covered by the expression `officers of the Ombudsman.' I accept that the Office can be seen as a `public sector agency' for the purposes of the PPIPA. In my view the Ombudsman is the head of that Office, and his official conduct (even if later found to be outside his powers) can be treated as the conduct of the administrative Office; and similar the conduct undertaken by staff in the Office under his authority (even if the conduct is later found to be outside power) can be treated as the conduct of the personal office of Ombudsman.

21 The practical reality is that most of the work of the Ombudsman is carried out under his or her authority by employed staff belonging to the Ombudsman's Office. It would make a mockery of the immunity if the references to the Ombudsman were to be read so as to exclude from their protection the conduct of officers of the Ombudsman belonging to the organisation known as the Ombudsman's Office.

22 In the title of these proceedings, I have named the respondent as the `Ombudsman's Office' as this appears to be the term used in relevant legislation, and most closely reflects the applicant's description `Office of the Ombudsman'. But in my view, for the reasons given, it would make no difference in substance if the named respondent was `The Ombudsman'.

23 There is dispute as to the scope of the expression `civil proceedings'. The Ombudsman contends that it embraces all form of legal proceedings, whether in courts or tribunals; other than `criminal proceedings.' The Privacy Commissioner and the applicant disagree with this submission. They contend that the term `civil proceedings' refers to proceedings conducted in the ordinary courts in relation to civil disputes.

24 The Ombudsman refers to the Tribunal's recent decision in JG v Ombudsman [2002] NSWADT (unreported, 13 February 2002). There the Equal Opportunity Division found without giving any detailed reasons that a complaint of unlawful discrimination in relation to the conduct of the Ombudsman could not be pursued in the Tribunal because of the immunity given by s 35A. The conclusion accords with the reasoned decision of the Victorian Civil and Administrative Tribunal (VCAT) in relation to the effect of an equivalent statutory immunity on proceedings against the Ombudsman under the Equal Opportunity Act 1984 (Victoria): Clayton v Ombudsman (1998) 13 VAR 406 (VCAT); applied in Taylor v Health Services Commissioner [2000] VCAT 1082.

25 In Clayton's case like JG' case, the public complainant alleged unlawful discrimination because of the Ombudsman's failure to pursue an investigation into a complaint against the Police. In Clayton the Tribunal concluded that the term `civil proceedings' had a broad meaning which embraced such applications. The Tribunal then went on to consider the question of whether the Equal Opportunity Act or the Ombudsman Act should prevail on the question of the extent to which the Ombudsman was subject to suit.

26 In Clayton the Tribunal said (at 419):

`[T]aking account of the context and construction of the Ombudsman Act and of the wide and socially beneficial and protective functions and jurisdiction of the Ombudsman to inquire into and investigate administrative action by government bodies, there is ample justification for giving s 29 [the equivalent of s 35A here] such full weight. This is the more so since s 29 requires the absence of bad faith and avenues are therefore open to a complainant who can satisfy the Supreme Court that there is a substantial ground for the contention that the Ombudsman or officer of the Ombudsman or officer has acted in bad faith.'

27 In New South Wales, the scope of s 35A has been the subject of three Supreme Court decisions. The Court has held that the immunity applies to applications for judicial review. The cases are: Ainsworth v The Ombudsman (1988) 17 NSWLR 276 (SC, Enderby J), (application for judicial review of determination by Ombudsman to discontinue a re-investigation of the handling by the Commissioner of Police of complaints made by the applicant against a number of police officers); Commissioner of Police v The Ombudsman, (SC, Sackville AJ, unreported, 9 September 1994) (application for judicial review of contents of a draft report containing provisional findings critical of the applicant in relation to his role in removing a person, now deceased, from the witness protection program, the complaint to the Ombudsman being made by the family of the deceased); and Botany Council v The Ombudsman, (SC, Spender AJ, unreported, 16 June 1995) (application for review of contents of a final report containing findings critical of the conduct of the applicant in relation to the making of determinations in respect of a Freedom of Information application made by the complainant to the Ombudsman). In each of these cases, the Court held that the immunity is a wide one, and no application for judicial review can be brought (unless `bad faith' is made out, a matter not alleged in any of those cases).

28 In each case the Court accepted the general principles of statutory construction as they are applied to clauses conferring immunity from suit. Historically they have been read narrowly: see, for example, Board of Fire Commissioners (NSW) v Ardouin [1961] HCA 71; (1961) 109 CLR 105; Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1; Coco v R [1994] HCA 15; (1994) 179 CLR 427; and Puntoriero v Water Administration Ministerial Corporation (1999)199 CLR 575. (The applicant noted that a similar reserve is shown in relation to the scope of common law immunities affecting statutory bodies, and referred to Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; (2001) 180 ALR 145.)

29 In Ainsworth, Enderby J examined the legislative history of s 35A, noting that it was inserted into the Act in December 1983, as a result of the Moroney litigation that occurred in 1982-83. In Moroney's case, the Ombudsman in his final report on a complaint implicating a senior constable and a number of other police officers had referred to conflicting accounts as between the police officers and the complainant concerning the events giving rise to the complaint, and had concluded that he was `unable to determine whether or not the complaint is sustained.' The senior constable applied for order, in the nature of mandamus, to require the Ombudsman to perform what he saw as the Ombudsman's duty, i.e. to make a definite finding as to whether or not he was satisfied that a complaint from a member of the public against the officer was sustained or not sustained. The applicant was successful before a single judge in obtaining an order: Moroney v The Ombudsman [1982] 2 NSWLR 591 (Lee J); the decision was reversed by the Court of Appeal: The Ombudsman v Moroney (1983) 1 NSWLR 317 (Street CJ, Moffit P; Hutley JA dissenting).

30 Enderby J observed at 283 in Ainsworth: `After those decisions, it can easily be appreciated why it might have been considered by Government and the Parliament that the Ombudsman was vulnerable to such actions and that it was in the public interest that he be given some protection.'

31 Enderby J also gave considerable weight to an early Northern Territory case confronted by the same issue, where a similar decision was reached: Alice Springs Town Council v Watts (1982) 50 LGRA 149 (SC NT, O'Leary J).

32 The two later New South Wales cases, Commissioner of Police and Botany Council, both involved situations analogous to the Moroney case, where the public agency or official the subject of a public complaint sought to have varied the contents of a less than favourable Ombudsman report.

33 In my view it is not possible, practically, to read `civil proceedings' as only referring to court proceedings. In the modern legal system there is a distribution of dispute resolution between several types of bodies - courts, tribunals and commissions being well known categories. The Parliament from time to time varies the allocation of matters as between the different types of bodies. At one time many of the review jurisdictions located in the General Division of this Tribunal belonged to the ordinary courts. The same is true of the disputes now dealt with by the Retail Leases Division. In some instances the Tribunal has co-extensive jurisdiction with the Supreme Court, for example in some of the jurisdictions of the Revenue Division.

34 There is then a further question as to whether a distinction can be drawn between `civil' proceedings and other proceedings (in courts or tribunals) that might be said to be neither `civil' or `criminal' in character. The Ombudsman contends that the expression `civil proceedings' is a compendious one, that embraces all proceedings that may give rise to final, binding orders following the use of judicial processes. The applicant and the Privacy Commissioner argue that at least proceedings involving the review of administrative conduct (whether by way of judicial review or in the review jurisdiction of a Tribunal) fall outside the parameters of `civil proceedings'; and therefore s 35A is not applicable to the present case.

35 The applicant and the Privacy Commissioner draw attention to an English ruling where an immunity from civil and criminal proceedings given to medical practitioners was found not to limit the ability of the court to entertain judicial review proceedings in relation to their administrative conduct (Ex p Waldron [1986] 1 QB 824 (CA)). In that decision Neill LJ noted at 848 that the medical practitioners would not be exposed to any personal claim by reason of the determination on judicial review. The Court referred to the value of judicial review as a protection of the rights of citizens aggrieved by administrative conduct.

36 I acknowledge that the term `civil' is often been seen as referring to actions or suits where the plaintiff has alleged a private wrong. This in the present context might provide a basis for distinguishing the position as it might apply in respect of s 35A as between a proceeding in the Equal Opportunity Division (where a private wrong is alleged) from the position where the claim relates to alleged unlawful conduct by a public official or a public agency. The latter might be termed a `public wrong'; the review of which, as noted in Ex p Waldron, does not expose the respondent to any personal liability.

37 The difficulty is that the English case was closely reviewed in the first two Supreme Court cases mentioned, Ainsworth and Commissioner of Police, and the Court was satisfied that in New South Wales the immunity given to the Ombudsman and his officers was designed to insulate the Ombudsman from challenges by way of judicial review to his official conduct. In line with these decisions, in principle the same position should be applied to the ordinary merits review jurisdiction of the Tribunal. It is not open to the Tribunal, I consider, to adopt the reasoning in Ex p Waldron.

38 There was also some debate as to whether the immunity applied if the conduct in issue was beyond power. The s 35A immunity applies `in respect of any act, matter or thing done or omitted to be done for the purpose of executing this or any other Act unless the act, matter or thing was done, or omitted to be done, in bad faith.' The conduct which the applicant seeks to place in issue is conduct, in my view, that can reasonably be said to be `for the purpose of executing' both the Ombudsman Act and the FOI Act. See generally, Little v Commonwealth [1947] HCA 24; (1947) 75 CLR 94 per Dixon J cited by Sackville AJ in Commissioner of Police at 33-4.

39 The conduct in issue is the making of a communication of that part of his letter to the Ombudsman's Office which contained what he considers to be protected personal information to the complainants for their comment and reply. The making of that communication occurred in the course of the conduct of the complaint investigation functions of the Office. It does not in my view matter whether the conduct was within or outside power.

40 So in relation to the breadth of the meaning of s 35A, I agree essentially with the submissions of the Ombudsman; and adopt the reasoning in the Supreme Court decisions. But this conclusion does not, in my view, dispose of the specific question raised in this case.

The Scheme of Regulation of the Ombudsman under PPIPA

41 The Ombudsman accepts that he is bound by the PPIPA as far as the internal review stage (he has personally undertaken the internal review in this case as the conduct of the Deputy Ombudsman is in issue), he submits that he is not bound to respond to an application for external review of his conduct lodged in the Tribunal pursuant to the provisions of the PPIPA. PPIPA, as the following account demonstrates, has dealt with great precision at several points as to the extent to which the activities of the Ombudsman's office are affected by the requirements of the PPIPA.

42 The Ombudsman's Office is defined as an `investigative agency' (PPIPA, s 3). Accordingly the Office obtains the benefit of the PPIPA's various qualifications on the application of the IPPs to `investigative agencies'.

43 For example, s 24(2) provides that an investigative agency is not required to conform with s 17 (the IPP relating to Use of Information for Purpose) if the use of the information for another purpose is `reasonably necessary in order to enable the agency to exercise its complaint handling functions or any of its investigative functions.' Similarly an investigative agency is not required to comply with s 18, the IPP in issue in these proceedings relating to permissible disclosure, in one circumstance - where the disclosure is to another investigative agency (s 24(3)).

44 The Ombudsman's Office is given a wide exclusion by s 24(6) which provides that `The Ombudsman's Office is not required to comply with section 9 or 10.' These are the IPPs relating to Direct Collection and Notification of Purpose of Collection.

45 Section 24(7) provides that an investigative agency is not required to comply with one element of the IPP on Security, s 12, the element which states that agencies should only hold information as long as necessary.

46 It will be seen from the above analysis that the Ombudsman's Office enjoys special treatment in relation to IPPs found in ss 9, 10, 12(a), 17 and 18; but not the other IPPs, i.e. ss 8, 11, 12(b)-(d), 13, 14, 15, 16 and 19. The Ombudsman and the Ombudsman's Office is otherwise bound by the PPIPA.

47 Under PPIPA the Privacy Commissioner has broad functions (s 36), designed to support and encourage good privacy practices in the community. They include the power to receive, investigate and conciliate `complaints about privacy related matters' and to undertake inquiries and conduct investigations.

48 The Privacy Commissioner has a wide range of functions: see PPIPA s 36. One of them (s 36(2)(k)) is `to receive, investigate and conciliate complaints about privacy related matters (including conduct to which Part 5 applies)'. Conduct to which Part 5 applies is set out in s 52 and includes the present alleged conduct - contravention of an IPP: see s 52(1)). Under s 37 the Privacy Commissioner may require the Ombudsman to give the Privacy Commissioner a `statement of information' ((a)) and to produce documents ((b) and (c)). There is a specific exemption from these requirements for one of the investigative agencies, the Independent Commission Against Corruption (s 37(4)), but not for any other including the Ombudsman. The Privacy Commissioner may require agencies to provide information in relation to their internal compliance arrangement. Section 42(3) provides that the Commissioner does not have the power to require the Ombudsman's Office (inter alia) to provide such information.

49 In contrast to the calibrated approach reflected in PPIPA, the Ombudsman enjoys substantial exemption from the provisions of the Freedom of Information Act 1989 (FOIA). Schedule 2, made pursuant to s 9, exempts from the operation of the Act `The office of Ombudsman---the complaint handling, investigative and reporting functions of that office.' The result is that the Ombudsman is only bound by FOIA in respect of ancillary internal administrative activities of his office, such as those relating to budget and personnel.

Is the General Immunity qualified by PPIPA?

50 This is a case where a later statute has dealt specially with a particular topic (conduct relating to the handling of personal information by public sector agencies including applications for review of that conduct), while the earlier statute has dealt generally with the initiation of civil proceedings against the Ombudsman. The question for decision is whether the general provision has been repealed to a limited extent (pro tanto) by the later special provision; or should be read subject to the later provision. In this situation the maxim of statutory interpretation usually seen as applicable is leges posteriores priores contraries abrogant (the principle that a later Act impliedly repeals an earlier Act to the extent of any inconsistency). (The maxim of statutory interpretation, generalia specialibus non derogant (general provision does not impliedly repeal a special provision), is not applicable as it is concerned with cases where a general Act is passed after a special Act. See Pearce & Geddes, Statutory Interpretation in Australia (5th ed. 2001), [7.20].)

51 As to the approach to the interpretation of an earlier and later statute with apparently different approaches to the same subject matter, Griffith CJ said in Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1:

`...where the provisions of a particular Act of Parliament dealing with a particular subject matter are wholly inconsistent with the provisions of an earlier Act dealing with the same subject matter, then the earlier Act is repealed by implication ... Another branch of the same proposition is this, that if the provisions are not wholly inconsistent, but may become inconsistent in their application to particular cases, then to that extent the provisions of the former Act are excepted or their operation is excluded with respect to cases falling within the provisions of the later Act.'

52 Barton J in Goodwin at 10 accepted the proposition that:

`The Court must be satisfied that the two enactments are so inconsistent or repugnant that they cannot stand together, before they can from the language of the later imply the repeal of an express prior enactment, i.e. the repeal must, if not express, flow from necessary implication.'

53 Gaudron J said in qualification of any ready application of these principles in Saraswati v R [1991] HCA 21; (1991) 100 ALR 193 at 204:

`It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other.'

54 The question remains whether s 35A, broad as I have acknowledged its terms are, should be read as subject to the rights of review granted to citizens by Part 5 of PPIPA including the right of Tribunal review given by s 55. Put another way: did Parliament intend PPIPA to deal sui generis with complaints of contravention of the IPPs including review; and to that extent to operate as a modification to the general ouster found in s 35A?

55 The terms, purpose, scope and objects of the both Acts need to be examined.

56 In Clayton's case, the Victorian Tribunal rejected any ready application of implied repeal principle to the case before it - in that State the Ombudsman Act immunity predated the Equal Opportunity Act. It found, as explained earlier in these reasons, that the provision was comprehensive in terms and ousted the later jurisdiction conferred by the Equal Opportunity Act.

57 The Equal Opportunity Act in Victoria (and the parallel provisions in the Anti-Discrimination Act in New South Wales) deal generally with the liability of employers and other classes of respondent in relation to conduct which may involve unlawful discrimination. There is no special focus on public sector agencies. In contrast, PPIPA deals specifically with the position of public sector agencies; and sets down a detailed enforcement regime involving internal review, the Privacy Commissioner and the Tribunal.

58 One of the submissions of the Ombudsman, reflecting a view expressed in Clayton's case, is that s 35B provides a solution to the problem of any apparent overlap; in that a citizen may obtain review of conduct alleged to infringe PPIPA if the Supreme Court can be satisfied that the conduct was affected by `bad faith'. (See also the observations of Sackville AJ in Commissioner of Police at 30 and 31.)

59 This does not in my view dispose of the problem for the ordinary citizen affected by failure of an agency to observe privacy standards. The cases where bad faith is an explanation for a transgression of standards will always, hopefully, be rare; especially in the performance of the responsibilities of high public offices such as that of the Ombudsman. The `bad faith' exception leaves the citizen unprotected in cases where specific privacy standards have been breached.

60 One of the arguments that was persuasive in Ainsworth in support of the proposition that s 35A ousted the Supreme Court's pre-existing judicial review jurisdiction (subject only to s 35B) was that the Ombudsman is a `unique institution' in the role that it has in ensuring that public sector agencies are accountable for their administrative conduct: see per Enderby J at 283-284.

61 The argument has force. Clearly there is a public interest to be served in ensuring that the Ombudsman is left free to get on with the important role of shining a light into the administration of government (to pick up a metaphor used in some of the New South Wales cases) without being diverted by collateral challenges in the courts (or before tribunals).

62 In three of the four New South Wales cases mentioned, Moroney, Commissioner of Police and Botany Council, the public sector agencies or officials were, in effect, trying to block the Ombudsman from persisting in adopting conclusions seen as adverse to them. In the other, Ainsworth, a public complainant whose complaints had led to one investigation, was trying to get the Ombudsman to reverse his refusal to conduct another investigation.

63 While the protection of the Office from side-litigation is an important one, in my view, it would thwart the specific objects of PPIPA for it to be so construed that the citizen is given a right of internal review of conduct by the agency (a right acknowledged by the Ombudsman in this case - he undertook a comprehensive internal review) and be deprived of the next tier of protection from unlawful conduct - review by the Tribunal.

64 The applicant and the Privacy Commissioner refer in their submissions to s 69 of PPIPA as itself supporting the conclusion that PPIPA is a sui generis piece of legislation. Section 69 provides:

`69. Legal rights not affected

(1) Nothing in Part 2 [Information Protection Principles] or 3 [Privacy codes of practice and management plans] gives rise to, or can be taken into account in, any civil cause of action, and without limiting the generality of the foregoing, nothing in Part 2 or 3:

(a) operates to create in any person any legal rights not in existence before the enactment of this Act, or

(b) affects the validity, or provides grounds for review, of any judicial or administrative act or omission.

(2) Subsection (1) is subject to sections 21 and 32.'

65 This provision lends support to the conclusion for which the applicant and the Privacy Commissioner contend. It seeks to ensure that non-compliance with the IPPs can not found a right of action of any kind. There is no `right to information privacy' created by the Act, and any act or omission that infringes an IPP or a Privacy Code of Practice or Management Plan can not be the subject of external litigation. The provision supports the conclusion that Parliament intended the PPIPA scheme of regulation to apply fully to public sector agencies, subject only to express qualifications contained in PPIPA.

66 In discussing s 69, the Privacy Commissioner explained the special place of PPIPA in the scheme of regulation of the conduct of public sector agencies, including the Ombudsman's Office, in this way:

`...[T]he section assumes a separation between the privacy standards which public sector agencies must follow, and the conduct of agencies which can give rise to other legal or administrative claims and defences. This is consistent with the way in which the information protection principles are intended to operate. The principles do not confer functions and powers on agencies, rather they apply standards to which agencies must comply when exercising powers or performing functions which are established or defined by other lawful authority. ...

A claim that an organisation is non-compliant with an information protection principle does not amount to a challenge to its exercise of functions or powers, but to the manner in which it has handled personal information incidentally to the exercise of these functions and powers. Review by the Tribunal is an integral part of the process by which individuals acquire rights when agencies allegedly fail to follow a principle.'

67 The role of the Privacy Commissioner is also impacted by the Ombudsman's submissions. As noted earlier the Privacy Commissioner may intervene, without leave, in applications for external review; and has the status of a party. This matches closely the role that the Privacy Commissioner may play in relation to internal reviews of disputed conduct (as to which, see s 54).

68 The Privacy Commissioner is the ultimate invigilator of compliance with PPIPA and the good administrative practice that is reflected in the IPPs. In this scheme of regulation, it is clear that the Ombudsman is answerable and accountable to another public agency, the Privacy Commissioner.

69 Again, it would not in my view make sense of the scheme of the legislation for the Ombudsman to be subject to investigation by the Privacy Commissioner pursuant to s 36; to be subject to a requirement for an internal review of conduct from an aggrieved person pursuant to s 53; and then not to be subject to an application from that person for review of the conduct by the Tribunal under s 55.

70 I agree with the Privacy Commissioner's submission that PPIPA provides a fully integrated scheme of obligations to be observed by agencies, and rights of complaint to be afforded to citizens. The Privacy Commissioner submits, a view with which I agree, that it `is more consistent with the overall purpose of the Act [that the Ombudsman is subject to Tribunal review] than one which requires the Ombudsman's Office to comply with the principles but offers only a truncated remedy should it fail to do so.'

71 The intent of the Parliament was to provide a comprehensive code in one area of public sector conduct, the handling of personal information. It has sought carefully to balance the circumstances in which public sector agencies had obligations in respect of their conduct in handling personal information, and set up a special system of review of that conduct with three potential elements in a case such as the present, review by the Privacy Commissioner, internal review by the agency and external review by the Tribunal. A number of special protections were given both from compliance with the IPPs and from aspects of the functions of the Privacy Commissioner.

72 Immunity from suit provisions are often found in public sector agency legislation. It is unlikely, in my view, that Parliament intended them to prevail over the highly detailed scheme of regulation found in PPIPA.

73 Accordingly the Ombudsman Act, s 35A should, in this instance, be read subject to PPIPA. The right conferred by s 55 of PPIPA operates as a modification to the general immunity conferred by s 35A.

74 In reaching these conclusions, I recognise as have the Supreme Court and the Victorian Tribunal that it is in the interests of the efficient conduct of an Office like that of the Ombudsman's that it not be tied up in collateral legal proceedings which distract it from its ordinary work. The present instance is not in my view one of the same order as was involved in the cases which have reached the Supreme Court seeking judicial review and Tribunals dealing with equal opportunity complaints. The IPPs deal with detailed standards applicable to an important aspect of the administrative conduct of an agency (the handling of personal information); they do not allow scrutiny of the propriety of an Ombudsman's substantive conclusions.

75 (It is unnecessary in light of these conclusions to consider closely the applicant's final submission, one in the alternative. He submits that this is a case where the s 35A protection should not be accorded, as s 35B (the `bad faith' exception) applies. As I see it, this submission is not one that this Tribunal can consider. It impliedly assumes the effectiveness of s 35A, in which case any such claim would fall to be examined by the Supreme Court by application made under s 35B.)

Order

1. The objection to jurisdiction is dismissed.

2. The application is to be relisted for further directions.

Decision revised 5/12/03 to anonymize applicant's name in case cited of JG v NSW Ombudsman [2002] NSWADT