EFB v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2021-03-12

Issues for decision

The applicant, by way of an Application for Miscellaneous Matters, seeks the following orders: 1. That the Tribunal decline to accept the applicant's application for review made to it pursuant to the Privacy and Personal Information Protection Act 1998 as it seeks to invoke federal jurisdiction because it involves a matter between a State and a resident of another State; 2. That the Tribunal provide the applicant with a document stating that the Tribunal declines to accept the applicant's application because it involves a matter between a State and a resident of another State.
The substantive proceedings arise from an application by EFB for review of an internal review decision made on 5 November 2019 by the respondent on the applicant's complaint under s 53 of the Privacy and Personal Information Protection Act (PPIPA).
The decision maker determined that there had been no breach of the PPIPA and no action would be taken.
In directions made on 10 November 2020 the Tribunal noted that the applicant was considering commencing proceedings in the Local Court and whether to make an application to the Tribunal for determination of whether the Tribunal had jurisdiction to determine the application (the Jurisdictional Application).
She filed such an Application for Miscellaneous Matters on 24 November 2020. Subsequently she filed an Amended Application for Miscellaneous Matters on 24 December 2020 and has sought leave to amend the orders sought in the form filed on 24 December 2020. The respondent has not objected to the amendment in its submissions filed on 22 January 2021. I have decided that leave to amend the orders in the Application should be granted in order to facilitate the resolution of the Jurisdictional Application.

The applicant's case

The applicant relied upon: 1. Her affidavits dated 16 December 2020 (filed 24 December 2020) and 12 February 2021 (filed 6 January 2021) 2. Her Application for Miscellaneous Matters filed 24 November 2021 and an amended Application for Miscellaneous Matters filed 24 December 2021 and their attachments 3. The entirety of her written submissions.
The applicant pressed the orders set out in her Amended Application which are stated above at paragraph 1 of these reasons.
It is not in dispute, as stated in the applicant's affidavit of 16 December 2020, that she is a resident of Tasmania and has lived in Tasmania since January 2019. The applicant's affidavit of 12 February 2021 deals largely with the process she followed for posting her application from Hobart to commence these proceedings. EFB also states that she attended a case conference in this Tribunal by telephone on 21 January 2020 at which she states she heard the legal representative for the respondent state in answer to a question from the Senior Member whether there would be a jurisdictional challenge: "Yes I think so."
EFB says she received submissions from the respondent on 20 March 2020 dealing with jurisdiction. She states: "As soon as I read the jurisdictional part of the submissions I refer to at [31] above I became convinced that they were drafted in order to obtain dismissal of the matter 2019/00382033 [the current proceedings] for the lack of jurisdiction, but without asking the NCAT for it openly."
Those submissions of the respondent state that the respondent does not challenge the Tribunal's jurisdiction to determine the application. It goes on to provide submissions "to assist the Tribunal, should the Tribunal wish to consider and form an opinion as to its jurisdiction to determine the proceedings."
In her submissions, the applicant states that as a resident of Tasmania, she is a resident of another State within the meaning of s 75 of the Judiciary Act 1903. She submits that the Tribunal's review of an application under the PPIPA is an exercise of judicial power, the application is within the original jurisdiction of the High Court of Australia and cannot be validly determined by this Tribunal.

The respondent's case

The respondent has not filed any evidence in relation to the jurisdictional question. The respondent relies on its submissions filed on 22 January 2021.

The relevant legislation

Sections 75 and 77 of the Constitution provides: "75 Original jurisdiction of High Court In all matters: (i) arising under any treaty; (ii) affecting consuls or other representatives of other countries; (iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party; (iv) between States, or between residents of different States, or between a State and a resident of another State; (v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth; the High Court shall have original jurisdiction." "77 Power to define jurisdiction With respect to any of the matters mentioned in the last two sections the Parliament may make laws: (i) defining the jurisdiction of any federal court other than the High Court; (ii) defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States; (iii) investing any court of a State with federal jurisdiction."
Section 39 of the Judiciary Act 1903 provides: "39 Federal jurisdiction of State Courts in other matters (1) The jurisdiction of the High Court, so far as it is not exclusive of the jurisdiction of any Court of a State by virtue of section 38, shall be exclusive of the jurisdiction of the several Courts of the States, except as provided in this section. (2) The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject‑matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, except as provided in section 38, and subject to the following conditions and restrictions: (a) A decision of a Court of a State, whether in original or in appellate jurisdiction, shall not be subject to appeal to Her Majesty in Council, whether by special leave or otherwise. Special leave to appeal from decisions of State Courts though State law prohibits appeal (c) The High Court may grant special leave to appeal to the High Court from any decision of any Court or Judge of a State notwithstanding that the law of the State may prohibit any appeal from such Court or Judge.
Part 3A of the CAT Act provides: "34A Definitions In this Part - authorised court means any of the following - (a) the District Court, (b) the Local Court. federal jurisdiction means jurisdiction of a kind referred to in section 75 or 76 of the Commonwealth Constitution. jurisdictional limit, in relation to an authorised court, means the jurisdictional limit of the court within the meaning of the Civil Procedure Act 2005. substituted proceedings - see section 34C. 34B Applications or appeals involving federal jurisdiction may be made to authorised court (1) A person with standing to make an original application or external appeal may, with the leave of an authorised court, make the application or appeal to the court instead of the Tribunal. (2) The authorised court may grant leave for the application or appeal to be made to the court only if it is satisfied that - (a) the application or appeal was first made with the Tribunal, and (b) the determination of the application or appeal by the Tribunal would involve an exercise of federal jurisdiction, and (c) the Tribunal would otherwise have had original jurisdiction or external appellate jurisdiction enabling it to determine the application or appeal, and (d) substituted proceedings on the application or appeal would be within the jurisdictional limit of the court. (3) An application for leave must be - (a) filed with the authorised court along with - (i) an application or appeal that has been completed in the form and manner required under this Act for the kind of application or appeal concerned, and (ii) if the parties to the application or appeal have reached a settlement before leave is sought using a resolution process referred to in section 37 - a copy of the terms of settlement, and (b) accompanied by the applicable fee (if any) payable in the Tribunal for the application or appeal unless it has already been paid to the Tribunal. (4) If an appeal is made under this Act in relation to any matter in issue in the application or appeal - (a) for an appeal lodged before the application for leave is made to an authorised court - the court cannot grant leave unless and until the appeal is determined, or (b) for an appeal lodged on or after leave is granted by an authorised court - proceedings in the court concerning the application or appeal are stayed until the appeal made under this Act is determined. (5) An authorised court may remit an application or appeal to the Tribunal to determine the application or appeal if the court is satisfied that the Tribunal has jurisdiction to determine it. The court may do so instead of granting leave or after granting leave. (6) An authorised court that remits an application or appeal to the Tribunal may make such orders that it considers appropriate to facilitate the determination of the application or appeal by the Tribunal. (7) The Tribunal is to determine any application or appeal that is remitted to it in accordance with any orders made by the authorised court. (8) The following provisions apply if the authorised court is the District Court - (a) the District Court may grant leave and then transfer the proceedings on the application or appeal to the Local Court in accordance with the provisions of Division 2 (Transfer of proceedings from higher to lower court) of Part 9 of the Civil Procedure Act 2005, (b) if a transfer order is made under that Division, this Part applies to the proceedings as if the Local Court had granted leave for the application or appeal to be made to it instead of the Tribunal. 34C Proceedings after leave granted (1) Proceedings taken to be commenced if leave granted If an authorised court grants leave for an original application or external appeal to be made to it instead of the Tribunal - (a) proceedings for the determination of the application or appeal (substituted proceedings) are taken to have been commenced in the authorised court on the day on which the application or appeal was first made to the Tribunal, and (b) the court may make such orders (including in relation to the Tribunal) as it considers appropriate to facilitate its determination of the application or appeal. (2) Subsection (1) applies despite any limitation period under the Limitation Act 1969 or any enabling legislation that applies to the application or appeal concerned provided it was first lodged with the Tribunal before the expiry of the period. (3) Jurisdiction and functions of authorised court The authorised court has, and may exercise, all of the jurisdiction and functions in relation to the substituted proceedings that the Tribunal would have had if it could exercise federal jurisdiction, including jurisdiction and functions conferred or imposed on the Tribunal by or under this Act or enabling legislation. (4) Modifications to certain functions Despite subsections (1)-(3), the following provisions apply in relation to substituted proceedings - (a) the authorised court is to be constituted as provided by its relevant courts legislation instead of as provided by this Act or enabling legislation, (b) a party to the substituted proceedings is not required to pay any fees in relation to the commencement of the proceedings in the authorised court other than the fees referred to in section 34B(3)(b) unless the authorised court determines that additional fees are payable under its relevant courts legislation because of a substantial alteration in the nature of the claims in the proceedings, (c) the legislation applicable to appeals against decisions of the authorised court apply to decisions of the court in the substituted proceedings instead of Divisions 2 and 3 of Part 6, (d) if the authorised court is the District Court - the practice and procedure applicable in the District Court under its relevant courts legislation (and any laws applicable in relation to contempt of court) apply to the substituted proceedings instead of Parts 4 and 5, any enabling legislation, the procedural rules and practice directions, (e) if the authorised court is the Local Court - the practice and procedure applicable in the Local Court under its relevant courts legislation applies to the substituted proceedings instead of Part 4, any enabling legislation, the procedural rules and practice directions, except that - (i) the rules of evidence are to be applied to the proceedings if they would have been required to be applied if the proceedings were before the Tribunal, but the Local Court may, if it decides that it is appropriate to do so in the circumstances, not apply the rules of evidence if they were not required to be applied by the Tribunal, and (ii) a person who is not an Australian legal practitioner can, with the leave of the Local Court, represent a party to the proceedings, but only in the circumstances that the Tribunal would have been permitted to allow it if the proceedings were before the Tribunal, and (iii) a person who could have been made a party to, or intervened in, the proceedings if the proceedings were before the Tribunal can, with the leave of the Local Court, also be made a party or intervene, and (iv) the Local Court may award costs in the proceedings only in the circumstances that the Tribunal would have been permitted to award them (and the costs are to be assessed in the same way as they would have been) if the proceedings were before the Tribunal, (f) the authorised court may make orders giving effect to any settlement reached by the parties even if that settlement was reached before the substituted proceedings commenced, (g) the power of the authorised court to make orders as to costs in relation to the substituted proceedings includes a power to make orders with respect to - (i) the application for, and the granting of, leave for the application or appeal to which the substituted proceedings relate to be made to the court, and (ii) any step taken in the Tribunal before leave was granted, (h) any other modifications (including to the provisions of this Act or other legislation) as may be prescribed by the regulations for substituted proceedings of the kind concerned. (5) The Minister is not to recommend the making of a regulation for the purposes of subsection (4)(h) unless the Minister certifies that - (a) if the proposed amendments affect the exercise of jurisdiction or functions by the Tribunal - the President has agreed to the amendments, and (b) if the proposed amendments affect the exercise of jurisdiction or functions by the District Court - the Chief Judge of the District Court has agreed to the amendments, and (c) if the proposed amendments affect the exercise of jurisdiction or functions by the Local Court - the Chief Magistrate of the Local Court has agreed to the amendments. (6) References to Tribunal in legislation To avoid doubt (but subject to the regulations) - (a) any reference to the Tribunal in a provision of legislation that confers or imposes a function on the Tribunal is to be read as including a reference to an authorised court if the function is conferred or imposed on the court because of the operation of this section, and (b) any reference to proceedings in the Tribunal in a provision of the kind referred to in paragraph (a) is to be read as including a reference to proceedings in the authorised court. (7) Definitions In this section - modification includes addition, exception, omission or substitution. relevant courts legislation means - (a) for the District Court - the District Court Act 1973 and the rules of court under that Act, and (b) for the Local Court - the Local Court Act 2007 and the rules of court under that Act, and includes the Civil Procedure Act 2005 and the regulations and uniform rules under that Act in their application to the Court concerned. 34D Relationship of Part to this Act and other laws (1) The provisions of this Part prevail to the extent of any inconsistency between those provisions and any other provisions of this Act or other legislation. (2) To avoid doubt, subsection (1) applies despite anything in a Division Schedule for a Division of the Tribunal."

The jurisdictional question

As a result of the operation of s 77(iii) of the Constitution and s 39(2) of the Judiciary Act 1903, only the High Court and a "court of a state" can exercise judicial power in "federal matters" arising under ss 75 and 76 of the Constitution. Adjudication of disputes between a State and a resident of another State is a federal matter under s 75(iv) of the Constitution, which can be heard by a "court of a state". This Tribunal, which has been held not to be a "court of a state" (in Attorney General for New South Wales v Gatsby [2018] NSWCA 254), cannot exercise judicial power to adjudicate a dispute between the State of New South Wales and a resident of another State, which is a "federal matter" under s 75. This was determined by the High Court in Burns v Corbett [2018] HCA 15; (2018) 92 ALJR 423 at [39].
It is apparent that the current proceedings concern a dispute between the applicant, who is a resident of another State and the NSW Commissioner of Police. It is common ground that these proceedings amount to a dispute between a State and a resident of another State. If this is accepted the only issue to be determined is whether the review of the respondent's decision would involve the exercise of judicial power.
As the question concerns the Tribunal's jurisdiction, the appropriate course is to form and express an opinion, in order to determine whether it may conduct the review without exceeding the authority given to it by legislation (Brennan J in Re Adams and the Tax Agents' Board (1976) 12 ALR 239 at 242).
The applicant submitted that the Tribunal should follow the test posed by Calllinan J in Luton v Lessels [2002] HCA 13 which has ten criteria. She submitted that the factors identified by his Honour should be interpreted as follows in this case: 1. The exercise of powers under the PPIPA requires judicial independence and tenure. 2. Making findings on disputed facts and also applying the law is part of judicial power. 3. A decision by the Tribunal in reviewing a decision under the PPIPA is not made by reference to a formula or standard set of criteria, indicating it involves the exercise of judicial power. 4. There are limited rights of appeal from the decision. 5. Tribunal decisions are likely to serve as a precedent for the future. 6. The Legislature had by establishing gradated reviews and granting the Tribunal powers with regard to summons, hearings, a right to legal representation and costs, indicated that it exercised judicial power. 7. Courts traditionally determine whether legislation has been breached and whether remedial orders should be made, as does the Tribunal. 8. The Tribunal, in determining whether an information privacy principle has been breached, is determining pre-existing rights. 9. Is the process of a kind that has traditionally been undertaken by courts 10. The enforceability of the Tribunal's decisions under ss 72 and 73 of the CAT Act indicate that it exercises judicial power.
She also pointed to the Tribunal's ability to award monetary compensation under the PPIPA and to require an agency to take an action or refrain from an action under s 55 (2) as evidence of judicial power.
The applicant challenged the respondent's statement that a dispute involving administrative, not judicial, power, may be validly determined by a State Tribunal and disputes that Burns v Corbett supports this view.
The applicant says that since the Tribunal is not a Chapter III court, it lacks jurisdiction to review the respondent's decision as the proceedings involve the exercise of federal judicial power.
The respondent submits that the criteria of judicial power include the following. 1. The binding and authoritative quelling of controversies between parties independently of the consent of the parties. Not every enforceable decision is judicial, however. 2. The determination of existing rights and obligations according to law. 3. Some powers are neither purely executive or purely judicial. 4. Judicial power must be exercised judicially, for example through open and public enquiry and observing procedural fairness. 5. If the adjudicative body is not bound by the rules of evidence and has informal procedures, this may tend to indicate that the function is administrative. Government 6. There are some functions which involve judicial power when exercised by a court but administrative power when not.
The respondent submits that the power to be exercised in these proceedings is administrative, for the following reasons. 1. The Tribunal must give effect to any relevant policy in force except if it is contrary to law or produces an unjust decision in the circumstances (s 64(1) Administrative Decisions Review Act 1997). In the decision in Brandy at [268] it was held that judicial power involves applying a pre-existing standard rather than a policy or administrative discretion. 2. While the Tribunal may award damages and order injunctive relief these powers are neither purely executive or judicial. 3. The scope of the Tribunal's power to make orders is limited by s 55 of the PPIPA. 4. The Tribunal is not bound by the rules of evidence and its procedures are informal.
The applicant disputed the respondent's submissions. In particular, she submitted the following factors in favour of the power exercised by NCAT being judicial and thus impermissible under the Constitution. 1. The States did not retain any judicial power in respect of a matter between a State and a resident of another State. 2. The appearance of the term "administrative review" in the PPIPA and Administrative Decisions Review Act 1997 is not determinative. 3. The consideration of government policy is not inconsistent with the exercise of judicial power (Attorney General (Cth) v Breckler [1999] HCA 28 at [83]). 4. The Tribunal does determine legal rights and obligations and may also enforce its own monetary compensation orders under s 78 of the CAT Act.

Consideration

As noted above, only a "court of a state" can exercise judicial power in "federal matters" arising under ss 75 and 76 of the Constitution. The Tribunal is not a court of a State. It is common ground that the proceeding involves a dispute between a State and a resident of another state, therefore it is a "federal matter". The remaining question is whether determining the privacy application requires the exercise of judicial power. If it does, then the Tribunal lacks jurisdiction to deal with it.
In R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 373; [1970] HCA 8, Kitto J described what was generally involved in the exercise of judicial power in the following terms at 374-375: "Thus a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist. It is right, I think, to conclude from the cases on the subject that a power which does not involve such a process and lead to such an end needs to possess some special compelling feature if its inclusion in the category of judicial power is to be justified."
While the Tribunal may apply the law to the facts in these proceedings as described above, the inquiry it conducts is "an administrative review under the ADR Act of the conduct that was the subject of the application under section 53" (s 55(1) PPIPA).
In conducting an administrative review, s 63 of the ADR Act requires the Tribunal to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law.
For this purpose, the Tribunal may exercise all of the functions conferred or imposed on the administrator who made the decision.
This exercise is more confined than the exercise of judicial power described above. It is not an unconfined inquiry into the law and facts.
As stated by their Honours Deane, Dawson, Gaudron and McHugh JJ in Brandy ( at [266-270]): "Difficulty arises in attempting to formulate a comprehensive definition of judicial power not so much because it consists of a number of factors as because the combination is not always the same. It is hard to point to any essential or constant characteristic. Moreover, there are functions which, when performed by a court, constitute the exercise of judicial power but, when performed by some other body, do not. These difficulties were recognised by the Court in Precision Data Holdings Ltd v Wills: The acknowledged difficulty, if not impossibility, of framing a definition of judicial power that is at once exclusive and exhaustive arises from the circumstance that many positive features which are essential to the exercise of the power are not by themselves conclusive of it. Thus, although the finding of facts and the making of value judgments, even the formation of an opinion as to the legal rights and obligations of parties, are common ingredients in the exercise of judicial power, they may also be elements in the exercise of administrative and legislative power. However, it is not every binding and authoritative decision made in the determination of a dispute which constitutes the exercise of judicial power. A legislative or administrative decision may answer that description. Another important element which distinguishes a judicial decision is that it determines existing rights and duties and does so according to law. That is to say, it does so by the application of a pre-existing standard rather than by the formulation of policy or the exercise of an administrative discretion…. However, there is one aspect of judicial power which may serve to characterise a function as judicial when it is otherwise equivocal. That is the enforceability of decisions given in the exercise of judicial power. In Waterside Workers' Federation of Australia v J W Alexander Ltd , Barton J said: It is important to observe that the judicial power includes with the decision and the pronouncement of judgment the power to carry that judgment into effect between the contending parties. … Thus, Latham CJ pointed out, where a tribunal is able to give a binding and authoritative decision and is able to take action so as to enforce that decision, "all the attributes of judicial power are plainly present".
In determining a review under s 55 of the PPIPA, the Tribunal performs an administrative review of the conduct, as indicated by the wording in s 55(1) and (1A). Having reviewed the conduct, the Tribunal may decide to take no action or it may make one or more of the orders specified in s 55(2) or use its powers under Division 3 of Part 3 of Chapter 3 of the ADR Act.
That Division of the ADR Act includes: 1. A requirement to give effect to any relevant Government policy in force at the time the administratively reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case. 2. Powers which may be exercised on determination of administrative review. 3. The power to remit a matter to the administrator.
The references to "administrative review" and the requirement to give effect to relevant government policy unless contrary to law or unjust, do not suggest that the Tribunal is exercising judicial power when conducting a review under the PPIPA.
Furthermore, it is clear that the Tribunal cannot enforce the orders it makes after conducting such a review. The lack of a power to enforce its own orders was held in Brandy to be a significant factor against the power exercised by the Tribunal being viewed as judicial.
Orders for payment of money made by the Tribunal under the PPIPA can only be enforced by a court, not by the Tribunal. The power under s 55(2(a) of the PPIPA is not a power to enforce an order, as the applicant submitted. It is a power to order a party to pay a specified amount. Section 78 of the CAT Act provides that in order to recover any amount ordered to be paid by the Tribunal (including costs, but not including a civil or other penalty), the amount is to be certified by a registrar. The certificate may then be filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount as the amount stated in the certificate, A civil or other penalty ordered to be paid by the Tribunal may be registered as a judgment debt in a court of competent jurisdiction and is enforceable accordingly.
I note also that in determining that the Tribunal was not a court of the State in Gatsby, the Court of Appeal held that although the Tribunal had many of the features of a "court" most members of the Tribunal did not have the tenure and protection comparable to that held by judges.
In privacy proceedings the Tribunal may make findings of fact and apply the law, but it does not determine the legal rights and obligations of parties. The orders it may make are confined by the legislation.
Taking all the above factors into consideration, I conclude that the Tribunal exercises administrative power, not judicial power, in determining applications for review of conduct under s 55 of the PPIPA.
It follows that the Tribunal's jurisdiction to hear and determine the proceedings is not affected by ss 75(iv) and 77(iii) of the Constitution and s 39(2) of the Judiciary Act.

Orders

Leave is granted to the applicant to amend her Application for Miscellaneous Matters in the form filed on 24 December 2020.
The applicant's Application for Miscellaneous Matters filed on 24 December 2020 is dismissed.
The proceedings are referred to the Registrar to be listed for further directions.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 30 April 2021 - Paragraph 9 correction DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 April 2021

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