MY v Director General, Department of Community Services [2004] NSWADT 203

CITATION: MY v Director General, Department of Community Services [2004] NSWADT 203 DIVISION: General Division APPLICANT PARTIES: MY RESPONDENT Director General, Department of Community Services FILE NUMBER: 033334 HEARING DATES: 25/06/2004 SUBMISSIONS CLOSED: 06/28/2004 DATE OF DECISION: 09/17/2004

BEFORE: Montgomery S - Judicial Member APPLICATION: Privacy - information protection principle - personal information - use MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Children and Young Persons (Care and Protection) Act 1998 Mental Health Act 1990 Privacy & Personal Information Protection Act 1998 CASES CITED: MT v Director General, NSW Department of Education & Training [2004] NSWADT 194 APPLICANT REPRESENTATION: In person RESPONDENT E Sadleir, legal officer ORDERS: The Tribunal finds that the Department of Community Services has not contravened section 16 of the Privacy and Personal Information Protection Act 1998.

REASONS FOR DECISION 1 The Applicant in these proceedings applied to the Tribunal under the Privacy and Personal Information Protection Act 1998 ("the Privacy Act") for a review of certain conduct by employees of the NSW Department of Community Services ("the Agency"). The Agency is a public sector agency as defined by the Privacy Act. It is not in dispute that the information and opinions, which is the subject of this application, are "personal information" under the Privacy Act. 2 I have agreed not to identify the Applicant by name because of the personal nature of the information. In these reasons I refer to the Applicant as "MY". I have also agreed that some other individuals involved in this matter should not be identified in order to minimise the likelihood of identifying MY. Background: 3 MY and his wife have four children. The Agency removed the children from the care of their parents in March 2002 and care proceedings were instituted at that time. On 27 May 2003 the Children's Court made final orders allocating parental responsibility for the children to the Minister until each child attains the age of 18 years. 4 MY's application alleges that an affidavit sworn by an Agency's caseworker on 28 March 2002 ("the first affidavit"), and an affidavit sworn by a second caseworker on 29 November 2002 ("the second affidavit") contain false and misleading statements. These affidavits were used in care proceedings taken by the Agency after MY's children were removed from his and his wife's care. 5 MY has asserted that the affidavits contained false, misleading and irrelevant statements and that that information had a direct influence on, and was a deciding factor in the Children's Court finding that MY's children were in need of care and protection. Section 55 of the Privacy Act and section 37 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") give the Tribunal jurisdiction to review the conduct about which MY has complained. 6 In March 2003 MY sought an internal review by the Agency in accordance with part 5 of the Privacy & Personal Information Protection Act 1998 ("the Privacy Act"). The internal review request made reference to sections 13, 14, 15 and 16 of the Privacy Act. 7 The internal review was finalised in October 2003 and MY was notified of the outcome of the review by letter from the Agency's Director General dated 22 October 2003. In part, the reasons provide by the Agency stated: "Findings of the Internal Review Information about personal information held and access to personal information DoCS' records do not indicate that DoCS breached s13 or s14 of the PPIP Act. You were at all times able to request information from DoCS about the holdings of your personal information. You were aware, through case conferences and other communications with you, that DoCS held a range of your personal information. DoCS sent you copies of all affidavits before each Children's Court hearing. These were sent at various times by ordinary mail and registered mail. Alteration of personal information DoCS did not breach s15 of the PPIP Act. DoCS did not agree to [MY's wife's] request to amend personal information about you contained in the affidavit of 25 March 2002, but placed all correspondence on the file adjacent to the affidavit, as required by s15. You also had the opportunity to present evidence before each hearing of the Children's Court. Ensuring accuracy before use DoCS did not breach s16. All the information presented in all the affidavits, and in particular the affidavit lodged by [the Caseworker] on 25 March 2002 was true and correct to the knowledge of the relevant departmental officer. DoCS took all steps reasonable in collecting the information to ensure it was correct. Limits on disclosure DoCS' conduct in disclosing your information in affidavits to the Children's Court falls within section 25 (a) or, if that is not applicable, section 25(b) of the PPIP Act, which exempts an Agency from compliance with section 18. The care legislation (Children and Young Persons (Care end Protection) Act 1998) establishes a scheme whereby section 34(2)(d) permits DoCS to take a matter to Court and, if that happens, then DoCS must proceed by way of affidavit in accordance with the Children's Court Rules and the Practice Directions issued by the Children's Court for the conduct of care proceedings. You were aware of the information that would be disclosed because you were given copies of each affidavit before the relevant hearing. Collection DoCS' conduct in collecting personal information about you from sources other than you personally (s9), and in not complying with the requirements of section 10, is allowed under s 25 (a) of the PPIP Act. Section 30 of the Children and Young Persons (Care and Protection) Act 1998 obliges DoCS to carry out an investigation and assessment of whether the child or young person is at risk of harm. Section 248 of the same Act allows DoCS to collect information relating to the safety, welfare and wellbeing of a child or young person from a range of sources." 8 On 24 November 2003 MY filed the present Application with the Tribunal. It is not in dispute that the Agency holds personal information in relation to MY. MY asserts that the Agency's actions in relation to his personal information contravened several of the Information Protection Principles ("IPPs") contained in Part 2 Division 1 of the Privacy Act. The matter was listed for a planning meeting on 27 January 2004 and again on 5 March 2004 at which time MY appeared by telephone. MY did not appear at the subsequent planing meeting held on 29 April 2004. At that time the matter was listed for hearing on 16 June 2004. The matter proceeded on that day in MY's absence. 9 MY's Application alleges breaches of sections 13, 14, 15 and 16 of the Privacy Act. He conceded that section 25 provides the Agency with exemptions in relation to breaches of sections 13, 14 and 15 of the Privacy Act, however MY maintained the assertion that the Agency has acted in breach of section 16 of the Privacy Act. 10 Ms Sadleir appeared at the hearing on behalf of the Agency and provided a response to each of MY's assertions. In response to my request for further details in relation to some of the allegations, Ms Sadleir subsequently provided further written submissions. Applicable legislation 11 As indicated above, MY asserts that the Agency has acted in breach of several IPPs with respect to his personal information. Personal Information is defined in section 4 of the Privacy Act as: "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: (a) information about an individual who has been dead for more than 30 years, (b) information about an individual that is contained in a publicly available publication, (c) information about a witness who is included in a witness protection program under the Witness Protection Act 1995 or who is subject to other witness protection arrangements made under an Act, (d) information about an individual arising out of a warrant issued under the Telecommunications (Interception) Act 1979 of the Commonwealth, (e) information about an individual that is contained in a protected disclosure within the meaning of the Protected Disclosures Act 1994, or that has been collected in the course of an investigation arising out of a protected disclosure, (f) information about an individual arising out of, or in connection with, an authorised operation within the meaning of the Law Enforcement (Controlled Operations) Act 1997, (g) information about an individual arising out of a Royal Commission or Special Commission of Inquiry, (h) information about an individual arising out of a complaint made under Part 8A of the Police Service Act 1990, (i) information about an individual that is contained in a document of a kind referred to in clause 1 or 2 of Schedule 1 (restricted documents) to the Freedom of Information Act 1989 (ie Cabinet documents or Executive Council documents), (j) information or an opinion about an individual's suitability for appointment or employment as a public sector official, (ja) information about an individual that is obtained about an individual under Chapter 8 (Adoption information) of the Adoption Act 2000, (k) information about an individual that is of a class, or is contained in a document of a class, prescribed by the regulations for the purposes of this subsection. (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." 12 Sections 13 to 16 of the Privacy Act provide: "13 Information about personal information held by agencies A public sector agency that holds personal information must take such steps as are, in the circumstances, reasonable to enable any person to ascertain: (a) whether the agency holds personal information, and (b) whether the agency holds personal information relating to that person, and (c) if the agency holds personal information relating to that person: (i) the nature of that information, and (ii) the main purposes for which the information is used, and (iii) that person's entitlement to gain access to the information. 14 Access to personal information held by agencies A public sector agency that holds personal information must, at the request of the individual to whom the information relates and without excessive delay or expense, provide the individual with access to the information. 15 Alteration of personal information (1) A public sector agency that holds personal information must, at the request of the individual to whom the information relates, make appropriate amendments (whether by way of corrections, deletions or additions) to ensure that the personal information: (a) is accurate, and (b) having regard to the purpose for which the information was collected (or is to be used) and to any purpose that is directly related to that purpose, is relevant, up to date, complete and not misleading. (2) If a public sector agency is not prepared to amend personal information in accordance with a request by the individual to whom the information relates, the agency must, if so requested by the individual concerned, take such steps as are reasonable to attach to the information, in such a manner as is capable of being read with the information, any statement provided by that individual of the amendment sought. (3) If personal information is amended in accordance with this section, the individual to whom the information relates is entitled, if it is reasonably practicable, to have recipients of that information notified of the amendments made by the public sector agency. 16 Agency must check accuracy of personal information before use A public sector agency that holds personal information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading." 13 Division 3 of the Privacy Act provides for specific exemptions from compliance with IPPs in certain circumstances. Section 25 falls within Division 3 and provides: "25 Exemptions where non-compliance is lawfully authorised or required A public sector agency is not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 if: (a) the agency is lawfully authorised or required not to comply with the principle concerned, or (b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998)." 14 The Tribunal's powers on review are set out in section 55 of the Privacy Act as follows: "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 subsections (4) and (4A), 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 refrain 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. (4A) The Tribunal may not make an order under subsection (2) (a) if: (a) the applicant is a convicted inmate or former convicted inmate or a spouse, partner, relative, friend or an associate of a convicted inmate or former convicted inmate, and (b) the application relates to conduct of a public sector agency in relation to the convicted inmate or former convicted inmate, and (c) the conduct occurred while the convicted inmate or former convicted inmate was a convicted inmate, or relates to any period during which the convicted inmate or former convicted inmate was a convicted inmate. (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." 15 Sections 29 and 30 of the Children and Young Persons (Care and Protection) Act 1998 provide: "29 Protection of persons who make reports (1) If, in relation to a child or young person or a class of children or young persons, a person makes a report in good faith to the Director-General or to a person who has the power or responsibility to protect the child or young person or the class of children or young persons: (a) the making of the report does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct, and (b) no liability for defamation is incurred because of the report, and (c) the making of the report does not constitute a ground for civil proceedings for malicious prosecution or for conspiracy, and (d) the report, or evidence of its contents, is not admissible in any proceedings (other than care proceedings in the Children's Court, or any appeal arising from those care proceedings), and (e) a person cannot be compelled in any proceedings to produce the report or a copy of or extract from it or to disclose or give evidence of any of its contents, and (f) the identity of the person who made the report, or information from which the identity of that person could be deduced, must not be disclosed by any person, except with: (i) the consent of the person who made the report, or (ii) the leave of a court or other body before which proceedings relating to the report are conducted, and, unless that consent or leave is granted, a party or witness in any such proceedings must not be asked, and, if asked, cannot be required to answer, any question that cannot be answered without disclosing the identity or leading to the identification of that person. (1A) A certificate purporting to be signed by the Director-General that a document relating to a child or young person or a class of children or young persons is a report to which this section applies is admissible in any proceedings and, in the absence of evidence to the contrary, is proof that the document is such a report. (2) A court or other body cannot grant leave under subsection (1) (f) (ii) unless the court or other body is satisfied that the evidence is of critical importance in the proceedings and that failure to admit it would prejudice the proper administration of justice. (3) A court or other body that grants leave under subsection (1) (f) (ii): (a) must state the reasons why leave is granted, and (b) must ensure that the holder of the report is informed that evidence as to the identity of the person who made the report, or from which the identity of that person could be deduced, has been disclosed. (4) Subsection (1) (f) does not prevent the disclosure of information from which the identity of a person may be deduced if the prohibition on the disclosure of that information would prevent the proper investigation of the report. (5) A report to which this section applies is taken to be an exempt document for the purposes of the Freedom of Information Act 1989. (6) In this section: court includes a court exercising federal jurisdiction. report includes a report under sections 24, 25, 27 and 122." "30 Director-General's investigations and assessment On receipt of a report that a child or young person is suspected of being at risk of harm: (a) the Director-General is to make such investigations and assessment as the Director-General considers necessary to determine whether the child or young person is at risk of harm, or (b) the Director-General may decide to take no further action if, on the basis of the information provided, the Director-General considers that there is insufficient reason to believe that the child or young person is at risk of harm. Note: Under section 248, the Director-General may direct certain bodies, including the Police Service, a government department or agency, a public authority, a school, an area health service and a hospital to furnish the Director-General with information concerning the safety, welfare and well-being of a child or young person." 16 Section 248 of the same Act provides: "248 Provision and exchange of information (1) For the purposes of providing information to, or exchanging information with, a prescribed body, the Director-General may do either or both of the following: (a) the Director-General may, in accordance with the requirements (if any) prescribed by the regulations, furnish the prescribed body with information relating to the safety, welfare and well-being of a particular child or young person or class of children or young persons, (b) the Director-General may, in accordance with the requirements (if any) prescribed by the regulations, direct the prescribed body to furnish the Director-General with information relating to the safety, welfare and well-being of a particular child or young person or class of children or young persons. (2) It is the duty of a prescribed body to whom a direction is given under subsection (1) (b) to comply promptly with the requirements of the direction. (3) If information is furnished under subsection (1): (a) the furnishing of the information is not, in any proceedings before a court, tribunal or committee, to be held to constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct, and (b) no liability for defamation is incurred because of the furnishing of the information, and (c) the furnishing of the information does not constitute a ground for civil proceedings for malicious prosecution or for conspiracy. (4) A reference in subsection (3) to information furnished under subsection (1) extends to any information so furnished in good faith and with reasonable care. (5) A provision of any Act or law that prohibits or restricts the disclosure of information does not operate to prevent the furnishing of information (or affect a duty to furnish information) under this section. Nothing in this subsection affects any obligation or power to provide information apart from this subsection. (6) In this section: prescribed body means: (a) the Police Service, a government department or a public authority, or (b) a government school or a registered non-government school within the meaning of the Education Act 1990, or (c) a TAFE establishment within the meaning of the Technical and Further Education Commission Act 1990, or (d) a public health organisation within the meaning of the Health Services Act 1997, or (e) a private hospital within the meaning of the Private Hospitals and Day Procedure Centres Act 1988, or (f) any other body or class of bodies (including an unincorporated body or bodies) prescribed by the regulations for the purposes of this section." MY's case 17 MY alleges that the Agency contravened sections 13 to 16 of the Privacy Act. He alleges that the Agency has breached section 16 of the Privacy Act by not checking on the accuracy of his personal information before it was used in affidavits sworn by the Agency's caseworkers and filed in the Children's Court. 18 MY complains that some of the personal information about him and his wife that was used in the first affidavit was not accurate. He has provided a list of specific examples to the Tribunal of inaccurate information. (a) The first affidavit stated that MY's wife had had numerous admissions to a mental hospital. MY contends that this information is incorrect in that she had had no admissions to a mental hospital; (b) The first affidavit stated that both MY and his wife have had a mental health order imposed on them. MY denies that any order was made; (c) MY states that he was never in the Army or SAS forces as stated in the first affidavit. He states he was in the RAAF. He also says he was never subjected to a retraining program; and (d) The first affidavit wrongly referred to a medical practitioner as MY's treating medical practitioner. MY states that the named medical practitioner was never his treating medical practitioner, rather MY says that he was treated by the named medical practitioner's brother. 19 MY subsequently added a further allegation. He asserts that a statement in the second affidavit, that the mental health of MY and his wife had deteriorated, failed to acknowledge medical certificates provided on their behalf which suggested that this was not the case. 20 As I have indicated above, MY did not appear at the hearing of this matter. While he has annexed a considerable amount of documentation to his application, it is mostly of no relevance to these proceedings. The Agency's case 21 Ms Sadleir filed written submissions in response to MY's application. In part those submissions stated: "Complaint No 1: This complaint refers to para 32 [of the first affidavit]: 'Information made available to the Department of Community Services by Mental Health Services indicates that [MY's wife ] has had prior admissions and presentations to psychiatric units for delusional and paranoid behaviour. She has refused service from the Nepean Access Mental Health Team.' Information from Mental Health Services was sought by the Department under s248 Children & Young Persons (Care and Protection) Act 1998. As a result the Department received medical records concerning [MY's wife] from Wentworth Area Health Service. The records indicate that [MY's wife] was taken by Police to Nepean Hospital Psychiatric Unit under Section 24 Mental Health Act 1990 on 11 August 2001. Her preliminary diagnosis was delusional disorder query schizophrenia. She was not admitted at this time but was referred for case management follow up by the Community Access Team. The records indicate that the Community Access Team contacted [MY's wife] in late January 2002 as a result of concerns for her current state of mental health. [MY's wife] refused assistance at this time. She was also admitted to Pialla Unit Nepean Hospital in March 2002 at the time the children were removed from her care. Complaint No 2: This complaint relates to paragraph 57 and 58 [of the first affidavit]: 57: Both natural parents at the time of writing this report are still involuntary patients under the NSW Mental Health Act 58: [MY's wife] continues to be an inpatient in Pialla Unit -Nepean Hospital and is expected to be discharged under a Community Treatment Order under NSW Mental Health Act on Thursday 28 March 2002. [MY] were admitted as an involuntary patient to Paringa Unit, Cumberland Hospital 1 March 2002. He was discharged 17 April 2002 and was subject to a Community Treatment Order for six months. [MY's wife] was admitted to Pialla Unit, Nepean Hospital on 1 March 2002. She was discharged from Hospital at the end of April 2002. Complaint No: 3 This complaint relates to paragraph 37(xvi) [of the first affidavit]: ..Reports that [MY] had been an army officer and had been put on a reprogramming program during which mental health issues surfaced.' There are other references to the Applicant being a member of the SAS forces. Paragraph 37 in the affidavit is headed Prior Alternative Action. The paragraph provides a detailed history of departmental intervention with [MY's] family from May 2000 until March 2002. The paragraph details, in sub-paragraphs, when reports were received and their contents, information received from other agencies, details when home visits were made to the family and concerns of the family in respect of dealings with the Education Department. Specifically paragraph 37 (xvi) refers to a report that was received by the Department on 17 October 2001 concerning the children. The information in respect of risk of harm to the children was confirmed. This paragraph is not making a comment on whether the information is true. Rather it is detailing what the reporter has said in the report. Thus the sub-paragraph is simply repeating the contents of the report. This report is not produced in accordance with Section 29 (1)( e) & (f) Children and Young Persons (Child & Protection) Act 1998 as it will identity the reporter. However in terms of the Applicants service history it is noted that the medical records from St John of God indicate that the applicant was a member of the RAAF and was involved in peace keeping duties in the Middle East in 1982. He receives a TPI pension. Complaint 4: Whilst no reference to [the named medical practitioner] can be found in the [first] affidavit … the Department notes for its records that his treating medical practitioner is not [the named medical practitioner]. Has the Department used the personal information that it holds concerning the Applicant and his wife, without first taking steps that are reasonable in the circumstances, to ensure that the information was accurate, having regard to the purpose to which the information was used? 8. The Department collected the information concerning the Applicant and his wife under section 30 Children & Young Persons(Care and Protection) Act 1998. This section authorises the Director-General to make such investigation and assessment as the Director-General considers necessary to determine whether the child or young person is at risk of harm. 9. The focus of the investigation therefore was on the well-being of the children and whether they were exposed to a risk of harm. A review of the Departmental file shows that information was collected from a variety of sources. 10. As a result of the investigation, the Department formed the view that the children were at risk of some harm and filed an application in the Children's Court for the care of the children to reside with the Minister. The affidavit, the subject of this complaint, was prepared to support the application before the Children's Court. This was prepared in accordance with the Children's Court Rules and Practice Directions. It is a requirement of the Court Rules and Practice Directions that the affidavits to be relied upon as evidence by one party are served on the opposing party. 11. It is contended that of the personal information that is allegedly not true, the piece of personal information of most consequence relates to the medical history of the Applicant and his wife. The medical records of the Applicant and his wife were received under s 248 of the Act. A review of those records indicates that the statements in the affidavit concerning the Applicant's medical history and his wife's medical history were an accurate summation of their medical condition. 12. It is submitted that the information concerning the Applicant's defence service and the name of his treating general practitioner was not of any consequence in relation to the purpose for which the information was used. 13. It is also noted that the Applicant had an opportunity to challenge the veracity of the affidavit and other evidence filed with the Court through the Children's Court proceedings. It is contended that the Applicant cannot now challenge in these proceedings the evidence that was relied upon in the children's proceedings. The Applicant relies upon JD v Director-General NSW Department of Health [2004] NSWADT 7 (15 January 2004)" 17. It is submitted that the application should be dismissed." 22 Following the hearing, Ms Sadleir provided additional submissions in relation to two of these issues. In relation to MY's second complaint, which contends that MY was never subject to a section 27 order under the Mental Health Act 1990 those submissions provided: "On 1 March 2002, MY's children were taken into care by DoCS after a warrant was issued for their removal from the care of their parents. The Warrant was executed by Police, two officers from DoCS, including [the deponent of the first affidavit] and two officers from the Nepean Mental Health Team. At that time MY also appears to have been detained and was subsequently admitted on 1 March 2002 as an involuntary patient to Cumberland Hospital. The discharge summary from the hospital indicates that he was admitted under a temporary order, unspecified, and subsequently appeared before the Mental Health Review Tribunal on several occasions. He was released on 17 April 2002 under a Community Treatment Order. The copy of the original warrant issued in this matter could not be found on the departmental file. It is hypothesised that a warrant was also issued by the Magistrate to detain the Applicant under section 27 Mental Health Act 1990 in order that he be examined by a medical practitioner. It is noted that at the Protection Planning Meeting held in February 2002, the issue of a section 27 order was discussed by the mental health workers in attendance. The child protection alert is consistent with the issue of an Order 27 under Mental Health Act 1990 to detain the parents and transport them for a medical assessment. The report on the execution of the warrant is attached for the Tribunal's information. It notes that the 'natural parents have been scheduled under section 21(1) of the NSW Mental Health Act'. Section 21(1) permits a person to be detained in a hospital on the certificate of a medical practitioner or an accredited person. Section 21 (1) can be seen to complement section 27, in that an applicant can be detained in order for the person to be examined by a medical practitioner. The medical discharge summary from Cumberland Hospital indicates that MY was admitted to Paringa Psychiatric Ward from Nepean Hospital. He was brought to the hospital by Police. These facts appear to be consistent with the operation of the orders under the Mental Health Act 1990. There are no police documents, or mental health records on the departmental file to indicate conclusively under which sections [MY] was detained and scheduled. However [the deponent of the first affidavit] was present with the Nepean Mental Health Access team when the family was apprehended by the warrant and therefore had first hand knowledge of events as they transpired. It is submitted therefore that the Agency has not breached section 16 Privacy & Personal Information Protection Act 1998 in regard to this complaint. [MY] was admitted for assessment and subsequently detained under the Mental Health Act 1990. [The deponent of the first affidavit] was present at the time that [MY] was detained. The information contained in the affidavit was relevant, current and not misleading having regard for the purpose for which the information was used." 23 Ms Sadleir provided copies of the documentation to which she referred in these submissions. 24 Ms Sadleir also provided additional submissions in relation to MY's fifth complaint. That complaint relates to paragraph 7 of the second affidavit which stated: "The Department is concerned that the parents' Mental Health has deteriorated to a point where any contact with the children at present (by the parents) is detrimental to the future emotional and psychological wellbeing of the children." 25 Ms Sadleir submitted: "This complaint was not included in the initial letter of complaint to the Department dated 10 March 2003 by [MY]. His initial letter of complaint and request for an internal review concerned the information contained in the [first] affidavit ... [MY] did not raise the issue of [the second] affidavit at that time. This complaint was first raised by the Applicant in his review to the Tribunal at paragraph 25 of his letter dated 17 November 2003. Therefore the Department has not had an opportunity to review the complaint through an internal review. The Department submits that this matter is not properly before the Tribunal at this stage. It submits that [MY] be invited to make this complaint at first instance to the Department. If he is then not happy with the outcome of the Internal Review, he has an opportunity to appeal to the Tribunal for a review of the decisions of the Department." Findings 26 It is not in dispute that the Agency collected and held personal information in relation to MY. Various provisions of the Privacy Act impose obligations on an agency with respect to how it deals with such personal information. Other provisions provide exemptions from those obligations in certain circumstances. I agree that section 25 of the Privacy Act exempts the Agency from compliance with sections 13, 14 and 15. In my view, the intention of section 248 of the Children and Young Persons (Care and Protection) Act 1998 is that the Agency is able to exchange information that is necessary for carrying out its obligations with respect to the care and protection of children and that such exchange of information should not be subject to the constraints that would otherwise be imposed on an agency. In my view, non-compliance is necessarily implied for the purposes of section 25 of the Privacy Act. 27 I also agree that no exemption applies with respect to section 16 of the Privacy Act. 28 It is firstly necessary to determine whether the Agency, through its caseworkers, has used MY's personal information. In my recent decision in MT v Director General, NSW Department of Education & Training [2004] NSWADT 194 I considered the meaning to be given to the term "use" for the purposes of section 16 of the Privacy Act. I expressed the view that the term should be given the meaning of "to avail oneself of; apply to one's own purposes". I maintain that view. In the circumstances of this matter, I am satisfied that the Agency has used MY's personal information in the first affidavit. 29 The issue then is whether, before using the information, the Agency took "such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading". 30 While I do not agree with Ms Sadleir's categorisation of the use of the personal information in terms of whether it was of more or less consequence in the particular Children's Court determination, I am nevertheless satisfied that, having regard to the purpose for which the information was used, the Agency took such steps as were reasonable in the circumstances. In any event I am satisfied that it was furnished in good faith and with reasonable care for the purposes of section 248(3) of the Children and Young Persons (Care and Protection) Act 1998. 31 Accordingly, I am not satisfied that the Agency has acted in breach of section 16 of the Privacy Act. It follows that I agree with Ms Sadleir's submission that the application be dismissed in this regard. 32 I also agree with Ms Sadleir's submission regarding MY's application insofar as it concerns the second affidavit. I note the Agency's invitation to MY to make the complaint directly to the Agency. I am unable to address this complaint further. Order The Tribunal finds that the Department of Community Services has not contravened section 16 of the Privacy and Personal Information Protection Act 1998.