Issue: September 2022
On 19 August 2022, the Health Records and Information Privacy Regulation 2022 (the current regulation) repealed and replaced the Health Records and Information Privacy Regulation 2017. While substantially similar, there are two key differences in the current regulation: first, it exempts an organisation from the restriction on use and disclosure of health information if the health information relates to a patient of a registered health practitioner suspected of being the subject of a complaint and it is used or disclosed to assist or at the request of the council established under the Health Practitioner Regulation National Law (NSW) that regulates the registered health practitioner; secondly, it no longer exempts the use and disclosure of health information contained in the organ donor register administered by Transport for NSW to the Australian Organ Donor Register or the NSW Organ and Tissue Donation Service.
Access the decision: Ritson v Commissioner of Police [2022] NSWCATAP 223
The appellant sought to appeal two decisions by the Tribunal, in which the Tribunal had made orders to revoke a non-publication order in respect of the appellant's name or material which identified the appellant. The decisions were made in relation to administrative reviews that were sought following a complaint by the appellant that the Commissioner or her agents had collected, and made use of, the appellant's personal address information via unlawful means contrary to s 8(2) of the Privacy and Personal Information Protection Act. The non-publication order in question prohibited the publication or broadcast of the respondent's name.
The appellant submitted that: the respondent bore the onus of establishing that the non-publication orders were not correctly made; that the Tribunal failed to take into account six specified considerations; and, the Tribunal erred because making the revocation orders would frustrate other non-publication orders that had been made in other proceedings between the parties.
The respondent submitted that: the only onus she bore in relation to the revocation application was to place material before the Tribunal capable of persuading it that the non-publication orders were not desirable, and that the appellant bore the onus of persuading it that it was desirable; the Tribunal did not err but suggested that the Tribunal redact the citations of the other proceedings contained in the first two decisions.
The Tribunal refused to grant leave to appeal, holding that: 1. in administrative review proceedings, neither party bears a strict onus of proof to show that a non-publication order continues or does not continue to be desirable. However, the beneficiary of the non-publication order bears a 'practical onus' to demonstrate good grounds for the continuation of the non-publication order; 2. in respect of self-represented litigants, procedural fairness requires only that a party be given 'a reasonable opportunity to present his case' and not that the Tribunal ensure 'that a party takes the best advantage of the opportunity to which he is entitled'.; and 3. regarding what relevant considerations the Tribunal must have in revoking its own orders, s. 64(3) of the NCAT Act confers a very broad discretion on the Tribunal that is only expressly limited by the requirement in s. 64(2) not to make an order inconsistent with s 65.
Access the decision: Commissioner of Police (NSW Police Force) v DVT [2022] NSWCATAP 231
The appellant appealed two decisions of the Tribunal, the first concerning breach of s. 14 of the PPIP Act in respect of five out of six emails sent by the respondent to persons within the NSW Police Force seeking access to his personal information. (It also found that a 'purported unilateral withdrawal' of an 'undertaking' of the appellant's solicitor was 'not valid' and so 'remains in place and is effective against the Appellant'). In the second decision concerning remedies, the Tribunal ordered the appellant to 'perform IPP 7 by providing the Applicant with access to all of the Applicant's personal information requested in Emails 1-6', even though the Tribunal had found that the appellant had not breached s. 14 in relation to email six.
The appellant challenged the breach and remedies decision on numerous grounds. Alleged errors of law included: identifying the wrong issue or asking the wrong question; constructive failure to exercise jurisdiction; denial of procedural fairness; failure to properly apply the Act; and making findings of fact without evidence. The appellant also sought leave to adduce fresh evidence.
The Appeal Panel refused to grant the appellant leave to adduce fresh evidence; granted the appellant an extension of time to appeal the Tribunal's decision concerning breach but dismissed the appeal; and, set aside the Tribunal's order regarding the undertaking.
09 Jun 2023