Vice-Chancellor, Macquarie University v FM (GD) [2003] NSWADTAP 43

Vice-Chancellor, Macquarie University v FM (GD) [2003] NSWADTAP 43

The Tribunal correctly concluded that oral disclosures by Macquarie University staff were 'personal information' and within the scope of s 18, and did not fall within claimed exceptions for express consent or imminent threat. However, the Tribunal misunderstood the statutory basis and scope of the 'lawful investigation' exemption, and failed to provide procedural fairness regarding the order's scope. The matter is to be further considered by the Appeal Panel as to whether compliance with s 18 would have detrimentally affected investigative functions, and to settle any order after hearing from the parties.

Jurisdiction
Australia
Judgment Date
23 September 2003
Procedural Posture
Appeal / Appeal Panel Decision; Consideration of Interlocutory and Substantive Issues, Outcome Pending Further Directions
Outcome
Appeal by FM dismissed; Appeal by Macquarie University allowed in part; original order set aside; remitter for further consideration of 'detriment' issue; relisting ordered.
Legal Topics
['privacy Principles' 'statutory Interpretation' 'unlawful Disclosure' 'investigative Function Exemptions' 'order Making Power']
['administrative Law' 'privacy Law' 'statutory Interpretation'] ['privacy Principles' 'statutory Interpretation' 'unlawful Disclosure' 'investigative Function Exemptions' 'order Making Power']

Case Brief

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Procedural Posture

Appeal / Appeal Panel Decision; Consideration of Interlocutory and Substantive Issues, Outcome Pending Further Directions

Legal Issues

  1. 1 ["Whether 'personal information' under the Privacy and Personal Information Protection Act 1998 (NSW) includes orally held information" 'Whether disclosures by Macquarie University staff contravened s 18 of the Act' 'Whether there was an express consent or reasonable awareness to authorise disclosure under s 18 or s 26' "Whether the 'lawful investigation' exemption applied per Privacy Commissioner's Direction" 'Whether the order made by the Tribunal was appropriate in scope and process']

Ratio Decidendi

The Tribunal correctly concluded that oral disclosures by Macquarie University staff were 'personal information' and within the scope of s 18, and did not fall within claimed exceptions for express consent or imminent threat. However, the Tribunal misunderstood the statutory basis and scope of the 'lawful investigation' exemption, and failed to provide procedural fairness regarding the order's scope. The matter is to be further considered by the Appeal Panel as to whether compliance with s 18 would have detrimentally affected investigative functions, and to settle any order after hearing from the parties.

Court Disposition

Appeal by FM dismissed; Appeal by Macquarie University allowed in part; original order set aside; remitter for further consideration of 'detriment' issue; relisting ordered.

Orders

  • ['Appeal by FM dismissed.' 'Appeal by Macquarie University allowed in part.' 'Order of the Tribunal set aside.' "The application for review is to be further considered by the Appeal Panel on the question of whether to have required compliance with section 18 of the Privacy and Personal Information Protection Act...