AGU v Commonwealth of Australia (GD) [2013] NSWADTAP 3

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 1The 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. 2AGU 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. 3The 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.