AGU v Commonwealth of Australia (No 2)
[2013] NSWCA 473
•23 December 2013
Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: AGU v Commonwealth of Australia (No 2) [2013] NSWCA 473 Hearing dates: 10 December 2013 Decision date: 23 December 2013 Before: Bathurst CJ at [1];
Beazley P at [2];
Basten JA at [3];
Leeming JA at [44];
Sackville AJA at [45]Decision: (1) To the extent necessary, grant leave to appeal.
(2) Dismiss the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: CONSTITUTIONAL LAW - whether inconsistency between State and Commonwealth laws - State Act purporting to bind the Commonwealth - State Act purporting to subject Commonwealth to jurisdiction of State tribunal
PRIVACY - operation of State legislation - whether Commonwealth bound - Health Records and Information Privacy Act 2002 (NSW), s 12 - Privacy and Personal Information Protection Act 1998 (NSW)
STATUTORY INTERPRETATION - principles - presumption that Crown not bound by statute - general presumption rebutted by specific provision - whether general provision that Act binds Crown not only in right of enacting State but in all other capacities indicates intention to bind Commonwealth - consideration of specific provisions required - provisions to be read in statutory context
WORDS & PHRASES - "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" - Health Records and Information Privacy Act 2002 (NSW), s 12Legislation Cited: Acts Interpretation Act 1901 (Cth), s 22
Acts Interpretation Act 1931 (Tas), s 6
Administrative Decisions Tribunal Act 1997 (NSW),s 119
Constitution, ss 77(iii), 109; Ch III
Court Suppression and Non-publication Orders Act 2010 (NSW), s 8
Criminal Appeal Act 1912 (NSW), s 5
Environmental Planning and Assessment 1979 (NSW), s 6
Health Records and Information Privacy Act 2002 (NSW), ss 4, 11, 12, 68; Sch 1
Interpretation Act 1987 (NSW),s 12, 13, 13A, 21
Judiciary Act 1903 (Cth)
Limitation Act 1969 (NSW), ss 10, 11
Privacy Act 1988 (Cth)
Privacy and Personal Information Protection Act 1998 (NSW), ss 7, 37, 53, 55; Pt 5
Social Security (Administration) Act 1999 (Cth)Cases Cited: AGU v Commonwealth of Australia [2012] NSWADT 179
Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334
Botany Municipal Council v Federal Airports Authority [1992] HCA 52; 174 CLR 453
Bropho v State of Western Australia [1990] HCA 24; 171 CLR 1
Commissioner of Stamp Duties (NSW) v Owens [No 2] [1953] HCA 62; 88 CLR 168
Commonwealth v Anti-Discrimination Tribunal (Tasmania) [2008] FCAFC 104
Commonwealth v State of Western Australia [1999] HCA 5; 196 CLR 392
Maguire v Simpson [1977] HCA 63; 139 CLR 362
Pirrie v McFarlane [1925] HCA 30; 36 CLR 170
Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority [1997] HCA 36; 190 CLR 410
Seaegg v The King [1932] HCA 47; 48 CLR 251
Sneddon v State of New South Wales [2012] NSWCA 351
Solomons v District Court of New South Wales [2002] HCA 47; 211 CLR 119
Trust Company of Australia Ltd v Skiwing Pty Ltd [2006] NSWCA 185; 66 NSWLR 77Category: Principal judgment Parties: AGU (Applicant)
Commonwealth of Australia (Respondent)Representation: Counsel:
Dr C Birch SC/Ms L Walsh (Applicant)
HIV/AIDS Legal Centre (Applicant)
Mr S Lloyd SC/Mr C Lenehan (Respondent)
Solicitors:
Australian Government Solicitor (Respondent)
File Number(s): CA 2013/48192 Decision under appeal
- Jurisdiction:
- 9113
- Citation:
- AGU v Commonwealth of Australia [2013] NSWADTAP 3
- Date of Decision:
- 2013-01-21 00:00:00
- Before:
- Hennessy LCM, Deputy President
- File Number(s):
- ADT 129030
Judgment
BATHURST CJ: I agree with Basten JA.
BEAZLEY P: I agree with Basten JA.
BASTEN JA: The applicant in this matter is known by the identifier "AGU", the Court having made orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) prohibiting disclosure of information tending to reveal his identity. His complaint was that Centrelink, a Division within the Commonwealth Department of Human Services, had disclosed to a third party contractor confidential information with respect to a disability. Whether or not the Commonwealth was answerable to the complaint made by him under State legislation, it is clearly necessary to prevent prejudice to the proper administration of justice that he be allowed to agitate his claim without further jeopardising the very confidentiality which he seeks to protect. The public interest in this regard significantly outweighs the public interest in open justice which is only diminished to the extent of maintaining the confidentiality of his identity: Court Suppression and Non-publication Orders Act, s 8(1)(a) and (e).
The applicant's complaint was that the disclosure of information, provided to Centrelink for the purpose of obtaining a disability support pension, constituted a contravention of three "health privacy principles" set out in Sch 1 to the Health Records and Information Privacy Act 2002 (NSW) ("the Health Records Act").
The Health Records Act provides for a review of conduct by a "public sector agency" for contravention of a health privacy principle under Pt 5 of the Privacy and Personal Information Protection Act 1998 (NSW) ("the Privacy Protection Act"). The procedure requires that, in the first instance, an internal review be undertaken by the relevant agency: s 53. If dissatisfied with that process, the person may seek a review in the Administrative Decisions Tribunal: s 55. The appellant sought orders from the Tribunal (i) for compensation for humiliation and reputational harm, (ii) requiring Centrelink to refrain from conduct in contravention of a health privacy principle, and (iii) reimbursement of expenses of relocating (from the area in which he had been living prior to the disclosure).
Some of these matters may not have been accurately stated above: for example, there appears to have been a doubt as to whether Centrelink was responsible for the disclosure; there was also an absence of information as to whether an internal review had been sought. No point was taken in relation to these matters: in particular, the Commonwealth accepted that it was the proper respondent to any proceedings. The legal point raised, as a preliminary issue, was that departments of the Commonwealth Government were not subject to the State legislation. That contention was upheld by a judicial member of the Tribunal: AGU v Commonwealth of Australia [2012] NSWADT 179. An appeal to the Appeal Panel of the Tribunal was heard by Deputy President Hennessy (sitting alone) and dismissed: AGU v Commonwealth of Australia [2013] NSWADTAP 3. The Deputy President held that the Tribunal had no jurisdiction to review the conduct of Centrelink.
AGU sought leave to appeal from the decision of the Appeal Panel. The requirement for leave was presumably based on an assumption that the refusal of the Tribunal to entertain the application on the basis that it lacked jurisdiction was an interlocutory decision for the purposes of s 119(1A) of the Administrative Decisions Tribunal Act 1997 (NSW). Nothing turns on the form of the proceedings, nor on whether they might better have been brought by way of judicial review, seeking an order requiring the Tribunal to exercise the jurisdiction relied on by the appellant.
Issues
The primary argument for the appellant was that the State legislation expressly sought to bind the Commonwealth and was effective to do so. Whilst acknowledging that it would be invalid to the extent of any inconsistency with a law of the Commonwealth, the applicant contended that it could stand with the provisions of the Privacy Act 1988 (Cth), which did not seek to exclude the concurrent operation of State or Territory legislation.
The Commonwealth contended that, on their proper construction, the State Acts did not purport to bind the Commonwealth. It further argued that, if they did, they were inconsistent with both the Privacy Act and the Social Security (Administration) Act 1999 (Cth).
The Commonwealth raised a further constitutional difficulty, submitting that to the extent that the State Privacy Protection Act purported to confer jurisdiction on the Administrative Decisions Tribunal to make orders binding the Commonwealth, it was ineffective to do so, because it depended on Commonwealth legislation (namely the Judiciary Act 1903 (Cth)) to vest federal jurisdiction in the Tribunal. However, because the Tribunal was not a State court for the purposes of s 77(iii) of the Constitution, the legislative power of the Commonwealth did not extend so far and no State law could vest federal jurisdiction in a State Tribunal.
Although the applicant had not sought to do so in these proceedings, it might have been open to him to seek declaratory relief as to the breaches of State law in the Supreme Court, which would in turn have limited the effect of the Commonwealth's argument based on Ch III of the Constitution to the purported investing of federal jurisdiction in the Tribunal. The applicant, however, took a different approach, contending that the Tribunal was indeed a court of the State for the purposes of s 77(iii) of the Constitution and that authority in this Court to the contrary should not be followed. That would have required this Court to overrule Trust Company of Australia Ltd v Skiwing Pty Ltd [2006] NSWCA 185; 66 NSWLR 77: accordingly, the Court sat five judges, against the possibility that a decision on that ground would be required.
In the event, it is not necessary for the Court to address either of the submissions based on Ch III of the Constitution. The applicant should have a grant of leave to appeal, to the extent that it is necessary, but the appeal should be dismissed. The basis for dismissal is that the State legislation, properly construed, does not bind the Commonwealth.
Relevant Provisions of State legislation
The applicant's submission as to the operation of the Health Records Act depended on three basic propositions. The first was the effect of s 12, which is in the following terms:
12 Crown bound by Act
This 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.
The first submission was, therefore, that s 12 meant what it said: absent inconsistency with a law of the Commonwealth, the State Parliament had power to bind the Commonwealth in relation to its activities within the State and had expressed an intention to do so.
The second submission was more complex. It required reference to the operative provisions of the Health Records Act and the relevant definitions. The principal operative provision was s 11 which provides as follows:
11 How this Act applies to organisations
(1) This Act applies to every organisation that is a health service provider or that collects, holds or uses health information.
Note. The term organisation means a public sector agency or a private sector person.
(2) An organisation to whom or to which this Act applies is required to comply with the Health Privacy Principles and with any health privacy code of practice or provision of Part 4 that is applicable to the organisation.
(3) An organisation must not do any thing, or engage in any practice, that contravenes a Health Privacy Principle or a health privacy code of practice or a provision of Part 4 in respect of which the organisation is required to comply.
Note. The application of Health Privacy Principles and the provisions of Part 4 may be modified by health privacy codes of practice. See section 39.
As the note to sub-s (1) indicates, there is a definition in s 4(1) of the term "organisation", which "means a public sector agency or a private sector person". These terms are further defined in s 4(1) as follows:
4 Definitions
(1) In this Act:
...
private sector person means any of the following that is not a public sector agency:
(a) a natural person,
(b) a body corporate,
(c) a partnership,
(d) a trust or any other unincorporated association or body,
but does not include a small business operator within the meaning of the Privacy Act 1988 of the Commonwealth, or an agency within the meaning of that Act.
Note.
Small business operator is defined in section 6D of the Privacy Act 1988 of the Commonwealth. Several types of businesses or activities are excluded from that definition. In particular, under section 6D (4) (b) an individual, body corporate, partnership, unincorporated association or trust is not a small business operator if it provides a health service to an individual and holds any health information except in an employee record.
public sector agency means any of the following:
(a) a government department or the Teaching Service,
(b) a statutory body representing the Crown,
(c) (Repealed)
(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,
(e1) Service NSW Division of the Government Service,
(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 paragraphs (a)-(f), 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,
but does not include a State owned corporation.
public sector official means any of the following:
(a) a person appointed by the Governor, or a Minister, to a statutory office,
(b) a judicial officer within the meaning of the Judicial Officers Act 1986,
(c) a person employed in the Government Service, the Teaching Service, the NSW Health Service or the NSW Police Force,
(d) a local government councillor or a person employed by a local government authority,
(e) a person who is an officer of the Legislative Council or Legislative Assembly or who is employed by (or who is under the control of) the President of the Legislative Council or the Speaker of the Legislative Assembly, or both,
(f) a person who is employed or engaged by:
(i) a public sector agency, or
(ii) a person referred to in paragraphs (a)-(e),
(g) a person who acts for or on behalf of, or in the place of, or as deputy or delegate of, a public sector agency or person referred to in paragraphs (a)-(e).
Construction of Health Records Act
(a) structure of statute
Although the applicant focused on the precise language of the definitions, it is convenient to note first some aspects of the structure which underlies them. First, the term "public sector agency" includes some juristic persons, some entities which the law would not recognise as persons and some individual persons. Any government department (which falls within the term "public sector agency") will operate by individual agents and officers: these might themselves be within the definition of "private sector person" although they will also be within the term "public sector official". The term "public sector official" is not expressly found in either of the other defined terms which constitute together an "organisation". The operative provision dealing with public sector officials is s 68, which prohibits disclosure of health information about individuals, otherwise than in the lawful exercise of official functions. The note to that section is in the following terms:
Note. Corrupt conduct by employees or agents of private sector persons in relation to health information may be dealt with under Part 4A (Corruptly receiving commissions and other corrupt practices) of the Crimes Act 1900.
The second structural factor is to be found within the definition of "private sector person". The chapeau to the definition excludes any of the following that is a public sector agency. That is not in itself remarkable: clearly there are natural persons and bodies corporate which fall within the definition of "public sector agency". However, it is significant that the final words of the definition of "private sector person" exclude any body which is "an agency" within the meaning of the Privacy Act (Cth). The definition thus expressly addresses the operation of the Privacy Act (Cth), and on an assumption that such agencies might fall within the definition of "private sector person" because they would not have been excluded as public sector agencies. In other words, the definition of "private sector person" assumes that a Commonwealth agency is not a "public sector agency" as defined, notwithstanding that the definition includes a "government department" and "a statutory body representing the Crown".
Two inferences can be drawn from these structural considerations. First, it is necessary to address the language used bearing in mind the functions which the defined terms serve in the operative provisions. Thus, whilst public sector officials could fall within the definition of "private sector person" because they are all natural persons, it seems unlikely that that was intended. Secondly, the express assumption that Commonwealth agencies are not public sector agencies, contained in the definition of "private sector person", speaks strongly against any approach which would conclude that Commonwealth agencies could, on a literal reading, constitute public sector agencies.
(b) construing references to the Crown
Before turning to the specific language in the definition of "public sector agency" relied on by the applicant, two principles of statutory construction should be identified. First, there is s 12 of the Interpretation Act 1987 (NSW) which provides:
12 References to New South Wales to be implied
(1) In any Act or instrument:
(a) a reference to an officer, office or statutory body is a reference to such an officer, office or statutory body in and for New South Wales, and
(b) a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales.
(2) In any Act or instrument, a reference to a body constituted by or under an Act or instrument need not include the words "New South Wales" or "of New South Wales" merely because those words form part of the body's name or title.
This provision is further exemplified in the specific references in ss 13, 13A(5) and 21 to matters which are to be treated as specific to New South Wales.
In addition to s 12, there is a "general rule of construction" which would "confine" the terms of a State statute to State matters: Solomons v District Court of New South Wales [2002] HCA 47; 211 CLR 119 at [9] (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ). Support for that proposition was found in Seaegg v The King [1932] HCA 47; 48 CLR 251 at 255 and Commissioner of Stamp Duties (New South Wales) v Owens [No 2] [1953] HCA 62; 88 CLR 168 at 169. In Seaegg, the question was whether an appeal lay to the Court of Criminal Appeal by a person "convicted on indictment", as provided in s 5 of the Criminal Appeal Act 1912 (NSW), where the indictment was in the name of the Commonwealth Attorney-General for an offence against a federal law. However, the answer to the question so raised lay in the operation of the Judiciary Act, investing the State court with federal jurisdiction, to the extent that it did so it did not, at that time, include criminal appeals.
Owens involved an application for an indemnity certificate under the Suitors' Fund Act 1951 (NSW) with respect to proceedings in the High Court reversing a decision of the Supreme Court. The case held that a reference to a court determining an appeal should be understood as a reference to a New South Wales court and not as including the High Court.
The applicant submitted that both the statutory rule and the general law rule of construction must give way to the express terms of s 12 of the Health Records Act, which states that that Act binds the Crown in all its capacities and not just in right of New South Wales. Neither of the Acts referred to in Seaegg and Owens contained any provision equivalent to s 12 of the Health Records Act, or its equivalent (s 7) in the Privacy Protection Act. The general law rule of construction relied on in these authorities will give way to specific statutory provision to a different effect.
The primary purpose of a declaration in a statute that the "Crown" is bound by its provisions is clear: it is intended to rebut a general presumption of statutory interpretation that the Crown was not bound: Bropho v State of Western Australia [1990] HCA 24; 171 CLR 1 at 14-15. The extension of the presumption beyond the person of the Sovereign to agents and instrumentalities of the government was described in Bropho as presenting "no real problem of principle": at 15-16. That proposition may be doubted. Uncertainty as to the scope of the concept, together with confusion as to its rationale, suggest otherwise: Bropho at 16-17, 18-19; Commonwealth v Anti-Discrimination Tribunal (Tasmania) [2008] FCAFC 104 at [121]-[125] (Weinberg J); Sneddon v State of New South Wales [2012] NSWCA 351 at [40]-[52]. With the possible exception of criminal liability, the presumption was significantly weakened and made less "inflexible" by Bropho: at 25 and 27. Further, the language of "binding the Crown" is not always apposite.
In Commonwealth v State of Western Australia [Mining Act Case] [1999] HCA 5; 196 CLR 392 a question arose as to whether the Mining Act 1978 (WA) empowered a State mining warden to entertain an application for a mining tenement over land owned by the Commonwealth in fee simple and used for defence purposes. There was a question whether that land constituted either "Crown land" or "private land" for the purposes of the Mining Act. Gleeson CJ and Gaudron J noted that the question was not whether the Mining Act "binds the Commonwealth", but whether it applied to lands held by the Commonwealth for a public purpose: at [31]. The reasoning continued at [33]:
"It would be preferable, in our view, and more consonant with our constitutional arrangements, if the presumption that a statute 'does not bind the Crown' were expressed as a presumption that a statute which regulates the conduct or rights of individuals does not apply to members of the executive government of any of the polities in the federation, government instrumentalities and authorities intended to have the same legal status as the executive government, their servants or agents."
Accepting the expansive view of the statutory presumption, a provision stating that the statute does bind the Crown is nevertheless effective to rebut the full scope of such a presumption. In each case, the effect of such a provision will turn upon the statutory context. In some jurisdictions, such as Tasmania, the Acts Interpretation Act 1931 (Tas) states that the expression "person" does not include the Crown and further states that "[n]o Act shall be binding on the Crown or derogate from any prerogative right of the Crown unless words are included therein for that purpose": s 6(6). By contrast, the Acts Interpretation Act 1901 (Cth) included a presumption that expressions such as "person" include "a body politic or corporate as well as an individual": s 2C(1). Again, whether the use of that expression in a Commonwealth Act will have the effect of subjecting the State or its officers and agents to the legislative regime will be a matter involving the construction of the Act as a whole, as noted with respect to provisions of the Trade Practices Act 1974 (Cth) in Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334 at [20]-[24].
A provision similar in effect to s 12 of the Health Records Act is to be found in the Limitation Act 1969 (NSW). Section 10 provides that the Act binds the Crown and a definition of "Crown" in s 11(1) includes "not only the Crown in right of New South Wales but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities". That provision was referred to by Gibbs J in Maguire v Simpson [1977] HCA 63; 139 CLR 362 at 375 in considering whether the Commonwealth Bank was bound by the State Act. It was not necessary to determine the effect of the provision, however, because the result was achieved by application of s 64 of the Judiciary Act. In Council of the Municipality of Botany v Federal Airports Corporation [1992] HCA 52; 175 CLR 453 a question arose as to whether a Commonwealth instrumentality (the Federal Airports Corporation) was bound by the Environmental Planning and Assessment 1979 (NSW), s 6 of which was in relevantly identical terms to s 12 of the Health Records Act. While accepting that s 6 "would, in appropriate circumstances, enable the State Act to be construed as having an operation in relation to the Crown in right of the Commonwealth" (p 466), the Court held, after referring to other relevant provisions of the legislation, that the statutory concept of "public authority" as it appeared in the State Act could not be construed as extending to a Commonwealth authority: at 467.
The principle to be extracted from these authorities is that such a provision, while effective to rebut the general presumption that a statute does not bind the government which passed it, will be a factor, not necessarily determinative, in determining whether specific provisions apply in relation to other bodies politic.
(c) reliance on definitions
The next step in the applicant's argument required a close analysis of the language of the elements of the definition of "organisation", including "public sector agency", in the Health Records Act and, to the extent that they were elsewhere defined, the persons and bodies identified in that definition. In substance, the submission was that because parts of the definition could be read to include reference to Commonwealth agencies, and because of the express intention in s 12 to cover the Crown in all capacities, they should be so read.
The substance of the argument relied upon whether a particular phrase was capitalised or not. Thus, in paragraph (a) of the definition of "public sector agency" the reference to "a government department" appeared in lower case, whereas in s 21 of the Interpretation Act, the term "Government" was defined to mean "the Government of New South Wales". The inference sought to be drawn was that the use of the word "government" in the Health Records Act indicated that this was not a reference to the State Government because the term defined in the Interpretation Act had deliberately not been adopted. The distinction was deliberate, it was submitted, because in the very same line, there was reference to the "Teaching Service", adopting the precise form of that body as found in s 21 of the Interpretation Act. Further, a different view should not be taken because the word "government" was associated with department, as opposed to standing on its own: using a compound term, but capitalised, could be found in the Interpretation Act: for example "Government Printer".
By way of further example, in paragraph (e) the reference to "the NSW Police Force" adopted a statutory term (being the current language of the Police Act 1990 (NSW)), whilst in paragraph (f) there was reference to "a local government authority", not the phrase "local council" used in the Interpretation Act. The term "local government authority" is, however, specifically defined to mean "a council, or a county council", within the meaning of the Local Government Act 1993 (NSW), a State statute.
Finally, the applicant relied on the existence of a definition of "Commonwealth agency" in s 4(1) of the Health Records Act to support the proposition that the Act binds the Commonwealth. However, as the Commonwealth pointed out, such language can operate with respect to procedural and other functions conferred by State legislation, such as the power to transfer information to a Commonwealth agency in accordance with a health privacy code: Health Records Act, s 38(2)(c).
(d) conclusions on statutory construction
There are six broad reasons for rejecting the applicant's submissions on the construction of the Health Records Act. The first, and most powerful, is that the definition of "private sector person" by express reference to an agency of the Commonwealth within the meaning of the Privacy Act (Cth) and the express, but separate, exclusion of "a public sector agency" demonstrates that the drafter did not contemplate that the Commonwealth agencies fell within the definition of "public sector agency".
Secondly, there are potential explanations for the use of a term such as "government department" (uncapitalised) which do not support the conclusion that there was a deliberate intention to expand the concept beyond departments of the Government (being State entities). The term "government department", like that appearing in paragraph (b) of the definition of "public sector agency", namely "a statutory body representing the Crown" is consistent with a generic use of the term, rather than a deliberate expansion of the scope of the bodies to include those of the Crown in capacities other than in right of New South Wales.
Thirdly, if the drafter had intended to expand the concepts in the way proposed, it would have been easy to include a reference to "Commonwealth agencies", in circumstances where the singular of that phrase was a defined term in s 4(1), picking up the definition of "agency" in the Privacy Act (Cth). The failure to take that step reveals a reasonably clear intention that Commonwealth agencies were not intended to be covered, the clarity of which is enhanced by the other considerations pointing in the same direction.
Fourthly, had the drafter intended to impose obligations on the Crown in other capacities by the provisions under discussion, one might have expected some attention to the geographical or other circumstances which might have attracted an expansive operation of State law. Would the State Act apply to the Commonwealth agencies operating in the geographical area of New South Wales, or nationally, but in relation to persons resident in the State at some point in time? Apart from the Commonwealth, did the provisions of the State Act intend to govern the activities of other State and Territory agencies, and if so in what circumstances?
Fifthly, without trespassing upon the arguments relating to Ch III of the Constitution, it is at least plausible that, had the drafter intended to cover Commonwealth agencies, attention would have been paid to the scheme by which review of impugned conduct was to be undertaken by the Administrative Decisions Tribunal, with at least the possibility that the Commonwealth was thus being subjected to an exercise of judicial power otherwise than by a court of the State: Privacy Protection Act, s 55.
Sixthly, there are structural considerations. In the course of argument, senior counsel for the applicant accepted the proposition that because, on his construction, a public sector agency included a Commonwealth agency, which must itself act through individuals, such individuals would be public sector officials (within paragraph (g) of the definition of that term), and would thus fall within the language of a "private sector person". A literal reading of each provision would support such a conclusion; however, the conclusion demonstrates the weakness of such an approach, to the extent that it ignores the overall structure of the legislation. The structure of the Act gives no support for the proposition that a Commonwealth agency, being expressly excluded, is not a "private sector person", but that all its officers and employees are: compare the comments in the Mining Act Case, at [26] above.
The cumulative effect of these considerations outweighs the general statement, common to many modern statutes, that the Act seeks to bind the Crown in right of the enacting state and "in so far as the legislative power of Parliament permits, the Crown in all its other capacities".
Other matters
Whether any question of inconsistency arises will depend upon a finding that the State law, in its terms, purports to bind the Commonwealth or a particular Commonwealth agency. That State laws can have such an effect is undoubted: see, eg, Pirrie v McFarlane [1925] HCA 30; 36 CLR 170 and Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (Henderson's case) [1997] HCA 36; 190 CLR 410. However, absent a conclusion that the State law purports to bind the Commonwealth, no question of inconsistency can arise.
In these circumstances, and on the basis on which the case was run, it is not necessary to address the further questions relating to Ch III of the Constitution and the correctness of this Court's decision that the Administrative Decisions Tribunal is not a court of the State for the purposes of s 77(iii) of the Constitution.
To the extent necessary, the applicant should have a grant of leave to appeal. The appeal, however, should be dismissed. The Commonwealth indicated by a note provided after the hearing that it would not seek costs against the applicant in the event that it was successful. Accordingly no order should be made as to the costs of the proceedings in this Court.
LEEMING JA: I agree with Basten JA.
SACKVILLE AJA: I agree with the orders proposed by Basten JA and with his Honour's reasons.
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Amendments
09 December 2014 - Correcting typographical errors and amending case citations in [22], [28]
Amended paragraphs: [10], [22], [28], [30], [34]
03 October 2014 - Amending section number; amending definition of NSW Police Force
Amended paragraphs: [27], [32]
Decision last updated: 09 December 2014
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