AGU v Commonwealth of Australia (No 2)

The appeal concerned the application of New South Wales privacy legislation to the Commonwealth. The Australian Government Solicitor (AGS) sought to appeal a decision of the Supreme Court of New South Wales, which had held that the Commonwealth was bound by certain provisions of the *Health Records and Information Privacy Act 2002* (NSW) and the *Privacy and Personal Information Protection Act 1998* (NSW). The central dispute revolved around whether these State Acts, by their terms, could bind the Commonwealth.

The primary legal issues before the Court of Appeal were whether the Commonwealth was bound by the operation of the *Health Records and Information Privacy Act 2002* (NSW) and the *Privacy and Personal Information Protection Act 1998* (NSW), and whether the Commonwealth could be subjected to the jurisdiction of a State tribunal under these Acts. This involved a consideration of the principles of statutory interpretation concerning the Crown's immunity from statute and the extent to which such immunity could be abrogated by State legislation.

The Court of Appeal affirmed the general presumption that statutes do not bind the Crown unless expressly stated or necessarily implied. However, it examined section 12 of the *Health Records and Information Privacy Act 2002* (NSW), which states that the 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 Court held that this provision, when read in its statutory context and considering the specific provisions of the privacy legislation, did not demonstrate a clear intention by the New South Wales Parliament to bind the Commonwealth in a manner that would override constitutional limitations on State legislative power. The Court concluded that the State Acts did not effectively bind the Commonwealth.

Consequently, the Court of Appeal granted leave to appeal to the extent necessary and dismissed the appeal.