AGU v Commonwealth of Australia

[2012] NSWADT 179

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	AGU v Commonwealth of Australia [2012] NSWADT 179
Hearing dates:	4 June 2012
Decision date:	30 August 2012
Jurisdiction:	General Division
Before:	Judicial Member N Isenberg
Decision:	The Tribunal has no jurisdiction to hear the application.
Catchwords:	Privacy - Health - Centrelink - whether a public sector agency - intention to bind the Commonwealth
Legislation Cited:	Health Records and Information Privacy Act 2002
Cases Cited:	Commonwealth v Anti-Discrimination Tribunal (Tas) [2008] FCAFC 104; 169 FCR 85 Telstra Corporation Ltd v Worthing (1999) 197 CLR 61
Category:	Interlocutory applications
Parties:	AGU (Applicant) Commonwealth of Australia (Respondent)
Representation:	Surry Hills Legal Centre (Applicant) Australian Government Solicitor (Respondent)
File Number(s):	113309

reasons for decision

Background

1. In the course of applying for a disability support pension, the Applicant, "AGU", disclosed to Centrelink, a Commonwealth agency, that he had a chronic medical condition. Subsequently, the Applicant utilised the services of Jobfind, a disability employment services provider. The Applicant discovered that his electronic file at Jobfind included information about his medical condition, that information having been (presumably) disclosed to Jobfind by Centrelink. The Applicant formed the view that, since he had neither consented to, nor been advised of, the disclosure, the information had been inappropriately disclosed.

1. By Application for Review of Conduct of a Public Sector Agency filed 3 November 2011(the Application), the Applicant:

• alleged that the Respondent contravened Health Privacy Principles (HPPs)4(1)(d), 10(1)(a), (b) and 11(1)(a), (b), which are set out in Sch 1 to the Health Records and Information Privacy Act 2002 (HRIP Act);and

• sought relief under ss 55(2)(a), (b) and (d) of the Privacy and Personal Information Protection Act 1998 (PPIP Act), including compensation for humiliation and reputational harm, an order requiring the Respondent to refrain from any conduct in contravention of the HPPs, and reimbursement for relocation expenses.

1. The Applicant subsequently withdrew his claims for monetary and/or other compensation.

Identity of the Respondent

1. There was no dispute that Centrelink is not itself a legal entity. Centrelink forms part of the Department of Human Services, a Department of the Commonwealth of Australia. Therefore the proper Respondent in these proceedings is the Commonwealth of Australia.

Issue for the Tribunal

1. Does the HRIP Act or the PPIP Act apply to the Respondent? If the answer to this question is 'No', the Tribunal has no jurisdiction to consider the Application.

CONSIDERATION

1. The Tribunal's jurisdiction under s 55 of the PPIP Act is limited to reviewing contraventions of the HPPs by a "public sector agency": s 21 of the HRIP Act, and s 53 of the PPIP Act.

1. In brief, the Applicant asserted that:

• Both HRIPAct and PPIPAct, read in context, clearly show a legislative intention to cover both State and Commonwealth government bodies

• There is no s. l09 inconsistency between either Act and the Privacy Act (Cth) 1988; the Commonwealth Act expressly does not cover the field

• The Tribunal can validly hear a complaint brought under HRIP Act and/or PPIP Act against a Commonwealth body as an exercise of its administrative powers

Is the Respondent a "public sector agency" to which the HRIP Act and/or the PPIP Act apply?

1. For the HRIP and/or PPIP Acts (the Acts) to apply a Respondent must be a "public sector agency" as defined (in identical terms) in both s 3(1) of the PPIP Act and s 4(1) of the HRIP Act. The HRIP Act and the HPPs only apply to "organisations" as defined in s 4(1) to mean a "public sector agency" or a "private sector person". The latter term includes natural persons, bodies corporate, and other unincorporated associations, but expressly excludes an "agency" within the meaning of the Privacy Act. Relevantly , in the Privacy Act "agency" is defined as "a Department", which, in turn, is defined as means an Agency within the meaning of the Public Service Act 1999 (Clth). There, somewhat circuitously, "agency" is defined, relevantly, as a "Department", which is in turn defined as a "Department of State". It is clear to me that, in context, this intends only to refer to a Commonwealth Department of State.

1. "Public sector agency" is defined in PIPP Act, so far as is relevant, as follows:

public sector agency means any of the following:

a government department or the Teaching Service,

a statutory body representing the Crown,

(c) - (g) ...

Is Centrelink a 'statutory body representing the Crown' for the purpose of PIPP Act?

1. The Applicant contended that Centrelink falls within (b) of the definition of public sector agency. Centrelink, however, is not a "statutory body", it having been merged into the Department of Human Services on 1 July 2011.

Is Centrelink a '(part of a) government department' for the purpose of PIPP Act?

1. As Centrelink is not a statutory body representing the Crown, is it a '(part of a) government department' in accordance with (a) in the definition? The Respondent referred me tos 12(1) of the Acts Interpretation Act 1987 (NSW) (Interpretation Act) which states that, that 'government department' is to be read as "a government department of New South Wales". Further, ass 21(1) of the Interpretation Act, defines "Government" to mean "Government of New South Wales", Centrelink would be excluded because it is part of a Commonwealth government department, not a NSW government department.

Was it intended that the Acts apply to Commonwealth Departments?

1. The provisions of the Interpretation Act referred to above are subject to any contrary intention: s 5(2).

1. The Applicant relied on s 33 of the Interpretation Act which 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 Applicant noted that the Acts are beneficial Acts, and referred to their long titles as demonstrating their purpose. The PPIPAct is:

An Act to provide for the protection of personal information, and for the protection of the privacy of individuals generally;to provide for the appointment of a Privacy Commissioner; to repeal the Privacy Committee Act 1975; and for other purposes.

1. Similarly, a purpose of the HRIPAct is:

To promote fair and responsible handling of health information by protecting the privacy of an individual's health information that is held in the public ... sectors:(s3(l)(a)).

1. The Applicant submitted that as the Respondent holds sensitive information about a significant number of persons in Australia, a determination about whether Centrelink's policies breach applicable privacy legislation would assist in achieving the outcomes of the Acts.

1. The Respondent submitted that any purposive approach to statutory construction cannot "obviate the need for close attention to the text and structure" of the provisions in question. The Respondent referred to Croker v Commonwealth [2005] NSWSC 994; 194 FLR 366 at [14]-[21] where in a matter concerning the Consumer Trader and Tenancy Tribunal of NSW Hoeben J stated that the initial question is one of construction as to whether or not the State legislation is intended to bind the Commonwealth.

1. The Respondent referred to the decision of Weinberg J in Commonwealth v Anti-Discrimination Tribunal (Tas) [2008] FCAFC 104; 169 FCR 85 (the Tasmanian case) at [155]:

[The] proposition that because the [Anti-Discrimination Act 1998 (Tas)] is beneficial legislation, it ought to be given a generous and liberal construction is obviously correct. It does not follow, however, that the ambit of the Act should be distorted to cover a polity within the federation to which the Act is ill adapted to apply.

1. Similarly, Kenny J, who with Weinberg J formed the majority, said at [181]:

If Centrelink ... is not properly characterised as a "person" to whom s 16 applies, then Centrelink cannot be bound by s 16. The remedial character of the ... Act favours a broad construction of the word. The important point is, however, that the ... Act can only bind [Centrelink] according to its terms, the construction of which depends as much on a consideration of the details of its provisions as a whole as on a general orientation to the construction process.

1. The Applicant submitted that the wording of s7 of the PPIP Act (and s 12 of the HRIP Act) also purport to bind not only the Crown in right of New South Wales but "also, in so far as the legislative power of Parliament permits, the Crown in all its other capacities". The Applicant contended that this provides a strong inference that the NSW State legislature intended to bind the Commonwealth, and that inference can only be reversed in the face of a clear, contrary statutory provision. The Applicant further submitted that, as the Commonwealth was unable to point to such clear, contrary intention, the Act binds the Commonwealth. At this point I observe that I do not accept that this statement that the Respondent bears this onus is necessarily correct. I could find nothing in the authorities to which the Applicant referred as supportive of this view.

1. The Applicant contended that the minority decision of Goldberg J was to be preferred. In particular the applicant relied upon the finding at [23] that s 41(1) of the Acts Interpretation Act 1931 (Tas) is "inconsistent with or repugnant to the true intent and object" of the Anti-Discrimination Act (Tas) and that it contained express words for the purpose of providing that the provisions of that Act are binding on the Crown, including the Crown in right of the Commonwealth of Australia.

1. It was noted that Section 4 of the Anti-Discrimination Act (Tas) provided:

This Act binds the Crown in the right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.

1. The Applicant also relied on the comments of Goldberg J in the minority judgment and obiter of Kenny J in the Tasmanian case. At [26] Goldberg J held that the reference in s 4 of the Anti-Discrimination Act (Tas) to the Crown "in all its other, capacities" could only mean capacities which include the capacity of the Crown in the right of the Commonwealth of Australia. This was considered to be clear legislative intention. Goldberg J observed at [41] that the key to the decision in Telstra Corporation Ltd v Worthing (1999) 197 CLR 61 was that the Court was not satisfied that there was "the clearest indication" of a legislative intention or purpose to subject the Commonwealth to the sanctions of penal provisions and criminal penalties which were central to the provisions of the State Act.

1. That the Court in the Tasmanian case was divided in its view, speaks for itself: in that matter there was not "the clearest intention" that the Commonwealth was to be bound. Neither, in the present matter, applying the reasoning of the majority in that case, can it be said, that there was "the clearest intention" that the Commonwealth was intended to be bound by the Acts.

1. Furthermore, "insofar as the legislative power of Parliament permits, the Crown in all its other capacities" does not derogate from the need to identify whether, as a matter of construction, the Respondent falls within the terms of the definition of "public sector agency": Telstra v Worthing [at [14]-[17]. In the Tasmanian case the majority held that the Anti-Discrimination Act 1998 (Tas) did not apply to Centrelink (which they accepted formed part of the Commonwealth), despite containing an express statement that the Act was intended to bind the Crown.

1. The Applicant also submitted that, as the PPIP Act "expressly excludes" a number of Commonwealth bodies such as the Australian Federal Police, the Australian Crime Commission, and the Commonwealth Director of Public Prosecution, by inference, the Act must cover Commonwealth agencies generally. Each of those bodies is listed in the definition of "law enforcement agency" in s 3(1) of the PPIP Act. With s 23(5), State public sector agencies are permitted to disclose personal information to Commonwealth law enforcement agencies without contravening s 18 in relation to limitation of disclosure of personal information. This also was the view of the Privacy Commissioner.

1. Contrary to the Applicant's arguments, when the definition of "public sector agency" is considered as a whole it is clear that, in fact, it is precisely targeted at State public sector agencies. Other sub-sections in the definition apply only to State entities, such as the NSW Police Force, and a local government authority: subsections (e) and (f) respectively. Construing "government department" in sub-section (a), and "statutory body representing the Crown" in sub-section (b), as limited to State departments and State statutory bodies, is therefore entirely consistent with the text and structure of the definition.

1. Further, the Respondent invited my attention to various references scattered throughout the Acts that indicate that the Acts are not intended to apply to the Respondent. For example: HPP 14(a) relevantly states that an "organisation" must not transfer "health information about an individual" to a "Commonwealth agency" unless the organisation "reasonably believes that the recipient of the information is subject to a law, binding scheme or contract that effectively upholds principles for fair handling of the information that are substantially similar to the [HPPs]". The assumption underlying this clause is that the HPPs do not directly apply to Commonwealth agencies (which must be because such agencies are not "public sector agencies" for the purposes of the HRIP Act).

1. The Respondent also submitted that, if the Applicant were correct in the proffered interpretation, then the bizarre result would ensue, namely that agencies of all other states would be subject to the (NSW) Acts.

CONCLUSION

1. For the reasons given above, the Health Records and Information Privacy Act 2002 and the Privacy and Personal Information Protection Act 1998 do not apply to Centrelink. Having come to that view it is unnecessary for me to consider the further submissions which related to s109 of the Constitution. Further, it was not necessary for me to consider the procedural jurisdictional issues raised by the Privacy Commissioner.

1. Accordingly the Tribunal has no jurisdiction to consider the application.

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar

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Decision last updated: 30 August 2012