On 24 May 2019 the Civil and Administrative Tribunal of New South Wales rejected an application for review of a decision of the FOI Officer of AHPRA's National Information Release Unit.

The Tribunal agreed with the reasoning of the FOI officer, namely that AHPRA was not required to carry out an internal review because the Privacy and Personal Information Protection Act 1998 did not apply to it. Accordingly, the Tribunal had no jurisdiction to review AHPRA's administrative conduct.

Background Facts

On 9 September 2015 an anonymous student, referred to as 'CEU', lodged a complaint with AHPRA against the Nursing Faculty of the University of Technology Sydney (UTS) for raising serious allegations against CEU.

When CEU made her complaint, the legal officer offered to forward the email to the Nursing and Midwifery Council, which CEU consented to. CEU asserted that AHPRA also forwarded the complaint to UTS and that UTS disclosed the unlawful disclosure to the Tribunal.

CEU made an application under the FOI Act to obtain information about AHPRA’s communications with UTS about her. There was a part release of documents. CEU then requested an internal review of the conduct in referring her complaint to UTS under the Privacy and Personal Information Protection Act (PPIP Act). AHPRA's FOI Officer determined that AHPRA was unable to carry out an internal review under s 53 of the PPIP Act.

AHPRA asserts that it did not forward the complaint to UTS and, in any event, it was not required to carry out a privacy review under the PPIP Act because that Act does not apply to it. It also contended that the Tribunal lacks jurisdiction to determine CEU’s application and sought to have the proceedings dismissed on that basis.

Arguments

AHPRA provides administrative assistance to 15 National Health Practitioner Boards responsible for regulating the health professions. In all states other than NSW and Queensland, AHPRA is also responsible for the registration and handling of notifications or complaints in relation to health practitioners and students. Section 6 of the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW) (Adoption Act) states that NSW does not participate in that process. As such, NSW is described as a ‘co-regulatory jurisdiction’. The assessment and management of complaints is dealt with by the relevant health council in conjunction with the HCCC. This process is provided for in the 'NSW Provisions' of the National Law.

AHPRA argued that s7(1)(h) of the Adoption Act applies. That section provides that the PPIP Act does not apply to the National Law or instruments made under the National Law. Section 7(2) contains an exception to this rule, namely that the PPIP Act applies to the NSW Provisions of the National Law.

AHPRA submitted that under the NSW provisions of the National Law, it is the relevant health council and the HCCC which are responsible for dealing with managing complaints against health practitioners and students. Only those bodies, and not AHPRA, are subject to the PPIP Act when carrying out their functions.

CEU submitted that the Tribunal has jurisdiction to deal with the privacy complaint under the PPIP Act because her dealings had been with the NSW branch of AHPRA and, as a State-based entity, it was subject to the PPIP Act. She argued that the exception in s 7(2) applied in the context of complaint handling because those functions were exercised under the NSW Provisions of the National Law.

CEU relied upon an earlier decision of the Tribunal which found that the NSW Ombudsman had breached the PPIP Act in forwarding an anonymous complaint by her about UTS, to UTS. She contended that the Act similarly covered AHPRA's conduct.

Decision

The Tribunal has jurisdiction under s 55 PPIP Act to review conduct the subject of an application for internal review under s 53 upon the application of a person who has earlier applied for internal review of that conduct. The relevant ‘conduct’ is 'the action or circumstances involving the agency that might amount to a possible contravention of an information protection principle.’ If the PPIP Act does not apply, then the Tribunal has no jurisdiction to conduct an administrative review of that conduct under the Administrative Decisions Review Act 1997.

In forwarding CEU’s complaint to the relevant bodies, AHPRA was carrying out its functions under s 25(a) of the National Law. It was not exercising any function under the NSW Provisions of the National Law. The only bodies relevantly subject to the PPIP Act when exercising functions under those provisions are the HCCC and the Nursing and Midwifery Council of New South Wales. Section 7(1) of the Adoption Act applies, and the PPIP Act does not apply to AHPRA. It is a single national entity, notwithstanding that certain state offices of AHPRA may handle certain matters. Accordingly, AHPRA’s decision that it was not required to conduct an internal review was correct. The Tribunal therefore has no jurisdiction to review the conduct.

The application for review was dismissed.