Greenleaf, Graham --- "Gray v Bell" [1994] PrivLawPRpr 144; (1994) 1(10) Privacy Law & Policy Reporter 191

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Gray v Bell

Federal Court of Australia, Neaves J, 13 May 1994, (1994) 122 ALR 604

Privacy Act 1988 (Cth), s 6(1) meaning of 'Commonwealth agency' - s 37 meaning of 'principal executive' - Racial Discrimination Act 1975 (Cth) - Human Rights and Equal Opportunity Commission Act 1986 (Cth) - Aboriginal and Torres Strait Islander Commission (ATSIC)

Certain determinations concerning complaints under the Racial Discrimination Act 1975 may be registered under the Human Rights and Equal Opportunity Commission Act 1986 (Cth). Section 25ZZA and s 3(1) of the Racial Discrimination Act have the effect that 'Commonwealth agency' and 'principal executive' in that Act have the same meaning as those terms have in the Privacy Act 1988 s 6(1) and s 37 respectively.

In obiter dicta Neaves J stated that 'agency' was defined broadly enough to include ATSIC as a body corporate established for a public purpose by a Commonwealth enactment. However, s 37 does not specify as an agency an incorporated body such as ATSIC, so 'there may be some doubt' whether the head of ATSIC (Mr Gray) could be properly described as 'the principal executive of a Commonwealth agency' where that expression is used in the Racial Discrimination Act. Neaves J also raised the question of whether provisions such as s 25ZZA have no operation when a person ceases to be a 'principal executive' before a determination is made.

Comment

The issues raised by Neaves J are relevant to the operation of Pt V (investigations) of the Privacy Act. The question will arise whether s 37 is exhaustive of those who can be regarded as a 'principal executive'.

Graham Greenleaf