Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: AGU v Commonwealth of Australia (GD) [2013] NSWADTAP 3
• Hearing dates: 5 November 2012
• Decision date: 21 January 2013
• Jurisdiction: Appeal Panel - Internal
• Before: Magistrate N Hennessy, Deputy President

Decision

The appeal is dismissed.

• Catchwords: APPEAL - whether the Privacy and Personal Information Protection Act 1998 applies to the Commonwealth - meaning of Crown liability provisions reversing Crown immunity
• Legislation Cited: Health Records and Information Privacy Act 2002; Interpretation Act 1987; Privacy and Personal Information Protection Act 1998
• Cases Cited: Commonwealth of Australia v Anti-Discrimination Tribunal (Tasmania) [2008] FCAFC 104; Re Residential Tenancies Tribunal of NSW v Henderson; Ex parte Defence Housing Authority (1997) 190 CLR 410
• Category: Principal judgment
• Parties: AGU (Appellant); Commonwealth of Australia (Respondent)
• Representation: Surry Hills Legal Centre (Appellant); Australian Government Solicitor (Respondent)
• File Number(s): 129030

Decision under appeal

• Citation: AGU v Commonwealth of Australia [2012] NSWADT 179
• Date of Decision: 2012-08-30 00:00:00
• Before: General Division
• File Number(s): 113309

REASON FOR DECISION

Introduction

1 The NSW Privacy and Personal Information Protection Act 1998 (PPIP Act) "binds the Crown in right of New South Wales and also, in so far as the legislative power of Parliament permits, the Crown in all its other capacities." Its "other capacities" include the Crown in right of the Commonwealth. This "liability of the Crown" provision overrides the common law presumption that the Crown is immune from civil suits.

2 AGU submitted that Centrelink, which is part of the Commonwealth Department of Human Services, is liable for contravening various Health Privacy Principles in the NSW Health Records and Information Privacy Act 2002 (HRIP Act). Centrelink says that the intention to bind the Commonwealth expressed in the "liability of the Crown" provision is outweighed by other parts of the PPIP Act which make it clear that there is no intention to make the Commonwealth liable for breaches of that Act. The Tribunal agreed with Centrelink's submission and AGU has appealed.

3 The function of determining whether the Tribunal has jurisdiction to deal with a matter is an "ancillary function": Administrative Decisions Tribunal Act 1997 (ADT Act), s 24A. If an appeal is made against the exercise of an ancillary function, as it has been in this case, the Appeal Panel may be constituted by one presidential judicial member: ADT Act, s 113(2E). The Appeal Panel is not required to grant leave before such an appeal can proceed.

Background

4 When applying for a disability support pension AGU disclosed to Centrelink that he had a chronic medical condition. AGU then consulted Jobfind, a disability employment services provider, and discovered that his file included information about his medical condition. AGU has assumed that Centrelink disclosed that information to Jobfind in breach of various Health Privacy Principles in the HRIP Act. He asks the Tribunal to review Centrelink's conduct and seeks remedies under the PPIP Act.

No jurisdiction to determine the appeal?

5 Centrelink submitted that the Appeal Panel has no jurisdiction to determine the appeal because there is no "reviewable decision" and a "reviewable decision" is required before there can be an "appealable decision". In the context of the PPIP Act, a reviewable decision is an internal review by a public sector agency of conduct about which a person is aggrieved: PPIP Act, s 53. Centrelink has not conducted an internal review of the conduct about which AGU is aggrieved, because it considers that it does not have power to do so. Centrelink submitted that as it is part of a Commonwealth Department, it is not a "public sector agency" and its conduct cannot give rise to a reviewable decision.

6 A party to proceedings in which an "appealable decision" of the Tribunal is made, may appeal against that decision to the Appeal Panel: ADT Act, s 113(1). An "appealable decision" is defined as "a decision of the Tribunal made in proceedings for . . . a review of a reviewable decision": s 112(1)(b). A proceeding relating to the review of conduct under s 55 of the PPIP Act is deemed to be a reviewable decision: ADT Act, s 8.

7 A reviewable decision includes a refusal of a decision-maker to make a decision (in this case to carry out an internal review) because the decision-maker considers that the decision concerned cannot lawfully be made under the PPIP Act: ADT Act, s 6(4). The Tribunal had jurisdiction to review that decision (or conduct). A decision "that a person is not entitled to apply . . . for the review of a reviewable decision" is also an "appealable decision": s 112(2)(a). The Appeal Panel has jurisdiction to hear an appeal against the Tribunal's decision.

Tribunal's decision

8 Central to the Tribunal's decision is the decision of the Federal Court in Commonwealth of Australia v Anti-Discrimination Tribunal (Tasmania) [2008] FCAFC 104. The majority (Weinberg and Kenny JJ) decided that, as a matter of statutory construction, Centrelink is not a "person" to whom the Anti-Discrimination Act 1998 (Tas) applies. AGU urged the Tribunal to adopt the reasoning of the dissenting judge, Goldberg J. His Honour decided that an equivalent "liability of the Crown" provision in the Anti-Discrimination Act 1998 (Tas) expressly binds the Commonwealth despite some indications in other parts of that Act of a contrary intention. The Tribunal preferred the reasoning of the majority.

9 The Tribunal found, and neither party disputes, that if it has jurisdiction, Centrelink must come within the definition of a "public sector agency": PPIP Act, s 53 and HRIP Act, s 21. That definition, in s 3, states that:

"public sector agency" means any of the following:

(a) a government department or the 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 NSW Police Force,

(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,

10 AGU submitted to the Tribunal at first instance that Centrelink came within paragraph (b) because it is "a statutory body representing the Crown." Since 1 July 2011, Centrelink has been part of the Department of Human Services. It is not a separate statutory body. The Tribunal decided that to be a "public sector agency" the Department of Human Services must come within the definition in (a), that is "a government department . . ." AGU agrees with the Tribunal's factual finding and now submits that a "government department" includes a Commonwealth government department.

11 The Tribunal noted that, subject to any contrary intention, s 12 of the Interpretation Act 1987 provides that a reference in an Act to a matter or thing is a reference to a matter or thing "in and of" NSW. The Interpretation Act defines "Government" to mean "the Government of New South Wales": s 21. These provisions satisfied the Tribunal that, subject to any contrary intention in the PPIP Act or the HRIP Act, "government department" means a NSW government department.

12 AGU submitted that a contrary intention could be found in the statutory scheme and, in particular, in the "liability of the Crown" provision. Section 33 of the Interpretation Act 1987 requires that "a construction that would promote the purpose or object underlying the Act . . . shall be preferred to a construction that would not promote that purpose or object." The Tribunal rejected AGU's submission that this provision meant that Centrelink fell within the definition of a government department. In doing so, the Tribunal agreed with the approach taken by the majority in Commonwealth v Anti-Discrimination Tribunal [2008] FCAFC 104 that the substantive Act "should not be distorted" and can only bind the Crown "according to its terms": Weinberg J at [155] and Kenny J at [181].

13 The Tribunal also rejected AGU's submission that it should adopt Goldberg J's reasoning in Commonwealth v Anti-Discrimination Tribunal. Goldberg J found at [43] that the words "binds the Crown" in the liability of the Crown provision of the Anti-Discrimination Act 1998 (Tas), demonstrate a clear intention that the Commonwealth is bound by that Act. The Tribunal found, in relation to the PPIP Act, that that intention was not clear.

14 Finally, the Tribunal rejected AGU's submission that other parts of the PPIP Act are consistent with Centrelink being a Government Department. The Tribunal found that the definition of "public sector agency" applies only to State public sector agencies including the NSW Police Force and local government authorities.

15 Having decided, as a matter of statutory construction, that it had no jurisdiction to review Centrelink's conduct, the Tribunal did not need to consider further submissions in relation to the constitutionality of the PPIP Act.

Grounds of appeal

16 On appeal AGU repeated many of the submissions made before the Tribunal at first instance. None of those submissions is persuasive.

17 Liability of the Crown provisions are a common feature of statutes in New South Wales and other states. They are intended to override the common law presumption in favour of Crown immunity. The liability of the Crown provision in the PPIP Act do not make the Commonwealth liable for any breach of that Act unless a substantive provision can be construed as making the Commonwealth liable.

18 The obligations under the PPIP Act apply to "public sector agencies" including Government departments. "Government department" in the s 3 definition of "public sector agency" is part of a composite expression, "a government department or the Teaching Service". The Teaching Service is defined in s 4 and s 44 of the Teaching Service Act 1980 as "The Teaching Service of New South Wales". In addition, "Government" is defined in the Interpretation Act 1987 as being the Government of New South Wales. The remainder of s 3 refers only to State Government agencies.

19 The only textual support for AGU's view was that the PPIP Act exempts a "law enforcement agency" from compliance with certain provisions including s 9 (collection of information personally from an individual); s 10 (requirements when collecting personal information); s 17 (limits on the use of personal information) and s 18 (limits on disclosure of personal information). Law enforcement agency is defined in s 3 of the PPIP Act to mean any of the following:

(a) the NSW Police Force, or the police force of another State or a Territory,

(b) the New South Wales Crime Commission,

(c) the Australian Federal Police,

(d) the Australian Crime Commission,

(e) the Director of Public Prosecutions of New South Wales, of another State or a Territory, or of the Commonwealth,

(f) the Department of Corrective Services,

(g) the Department of Juvenile Justice,

(g1) the Office of the Sheriff of New South Wales,

(h) a person or body prescribed by the regulations for the purposes of this definition.

20 AGU submitted that Commonwealth agencies such as the Australian Federal Police (and presumably State agencies such as the Police Force of another State or Territory) would not have been included in the definition of law enforcement agency unless those agencies had some potential liability under ss 9, 10, 17 or 18.

21 I do not agree with that view. The need for the definition of "law enforcement agency" to include the Commonwealth, State and Territory police services arises from the fact that a "public sector agency" will be exempt from laws preventing disclosure of certain personal information if it discloses that information to a "law enforcement agency": PPIP Act, s 23(5)(b). "Law enforcement agencies" are not themselves liable under the PPIP Act unless, like the NSW Police Force, they fall within the definition of a "public sector agency". No Commonwealth, State or Territory police force is included in that definition.

22 One ground of appeal not put squarely at first instance was that the liability of the Crown provision is a substantive provision and that regardless of the statutory scheme, that provision makes Commonwealth Departments and agencies subject to the PPIP Act and the HRIP Act. Authority for that proposition was said to come from the High Court's decision in Re Residential Tenancies Tribunal of NSW v Henderson; Ex parte Defence Housing Authority (1997) 190 CLR 410 at 448. In that case, Dawson, Toohey and Gaudron JJ found that the presumption that a statute expressed in general terms is not intended to bind the Crown is "clearly rebutted in this case by s 4". Section 4 is a liability of the Crown provision. Their Honours said at 448:

The express provision in s 4 of the Residential Tenancies Act that the Act binds the Crown in all its aspects relieves us of the need to determine whether the DHA (Defence Housing Authority) constitutes the Crown or an emanation of the Crown for the purpose of applying the presumption that a statute expressed in general terms is not intended to bind the Crown. (Words in brackets added.)

23 This passage supports the proposition that the purpose of liability of the Crown provisions is to override the common law presumption in favour of Crown immunity. While the High Court was satisfied that the liability of the Crown provision meant that the Commonwealth was bound by the Residential Tenancies Act 1987, that finding was made in the context of the facts of that case. The High Court was not setting down a general principle that a liability of the Crown provision makes the Commonwealth liable. Whether or not the Crown is liable will depend on the particular statutory context.

Order

24 The appeal is dismissed.

 

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Decision last updated: 21 January 2013