EHG v The Hon Yasmin Catley MP [2025] NSWCATAD 176

1. The applicant concluded that the Minister's conduct is reviewable under Pt 5 of the PPIPA and that the Tribunal has jurisdiction to determine the current application for administrative review.

1. The Minister filed submissions in reply on 3 July 2025, which I have summarised as follows:

(1) The applicant's submissions regarding statutory construction are contrary to orthodox principles. The purpose or object of a statute should not be derived extraneously, excluding consideration of the language of a crucial provision (whether a defined term or not) and then applied to construe that provision: Singh BHNF Ambu Anwar v Lynch [2020] NSWCA 152 (at [33]).

(2) The applicant's argument that the PPIPA is intended to apply to all executive officeholders simply assumes that which needs to be demonstrated. Also, it fails to appreciate that the PPIPA itself draws distinctions between public bodies and executive officeholders. In any event, his contention is too broad to be accepted, for example, it is difficult to see any basis in the language of the PPIPA for the Governor to fall within the scope of "public sector agency."

(3) On the contrary, the words of the PPIPA are the starting point and end point in its statutory construction: Grain Growers Limited v Chief Commissioner of State Revenue (NSW) [2016] NSWCA 259 (at [108]). While these words are to be construed in their context (which includes the objective of the PPIPA), clear words in the statute will prevail: see State of New South Wales v Williamson [2011] NSWCA 183 (at [29]).

(4) Therefore, the applicant's submissions do not identify any basis in the language of the PPIPA, the GSFA or the GSA to support his construction.

(5) The "remedial legislation" principle does not apply to this matter, as s 3(1) of the PPIPA expressly picks up a definition from the GSA. The GSA is not remedial or beneficial legislation (neither is the GSFA). In any event, even if the principle did apply, it does not mean that every leeway of constructional choice should be exercised in favour of a plaintiff: see The Owners - Strata Plan 87003 v Raysons Constructions Pty LTD [2025] NSWSC 66 (at [66]).

(6) In relation to the decision in AQO, the Tribunal is considering a different definition provided by para (d) and the Minister submits that a plain reading of the relevant provisions of the GSA leads to the conclusion that she is not an auditable entity for the purposes of the Act, and that a Minister is not a public sector entity for the purposes of the PPIPA. This is supported by the evidence of Ms Vallance.

(7) The applicant argues that s 15(6) of the PPIPA does not automatically imply exclusion of a Minister. The Minister agreed with this, but argues that it is a significant factor in favour of her construction.

(8) Further, Parliament's failure to implement a Law Reform Commission recommendation is not determinative, but it is a factor in favour of the Minister's construction.

1. Accordingly, the application for administrative review should be dismissed for want of jurisdiction.

1. Section 55(1) of the PPIPA provides that if a person who has made an application for internal review under s 53 is not satisfied with either the findings of the review, or the action taken by the public sector agency in relation to the application, they may apply to the Tribunal for an administrative review under the ADR Act of the conduct that was the subject of the application under s 53.
2. In this matter, the applicant applied for an internal review of a decision made by the Minister under s 53 of the PPIPA and he alleges that she breached s 18 of the PPIPA by disclosing his personal information to the Member.
3. However, the Tribunal is only vested with jurisdiction to determine the current application if it is satisfied that the Minister is a public sector agency for the purposes of the PPIPA.
4. The parties have made extensive submissions on this question, which I do not intend to repeat here, but it is pertinent to note that s 3(1) of the PPIPA expressly defines public sector agency and that the relevant provisions in this matter are ss (a1) and (d).
5. Paragraph (a1) defines public sector agency to mean, "the office of a political office holder within the meaning of the Members of Parliament staff Act 2013, being the office comprising the persons employed by the political office holder under Part 2 of that Act".
6. In my view, the Minister is the political office holder for the purposes of para (a1) and she does not fall within the definition of a public sector agency for the purposes of the PPIPA.
7. Paragraph (d) defines a public sector agency as being an auditable entity within the meaning of the GSA or any other entity within the meaning of that Act (or entity of a kind prescribed by the regulations, but excluding an entity (or entity of a kind) prescribed by the regulations.
8. While the applicant argues that the Tribunal should follow the majority decision of the Court of Appeal in AQO, which considered a previous version of para (d) and held that the Minister was a public sector entity, the Minister contends that the paragraph that was considered by the Court of Appeal was repealed and has been fully replaced with the current para since AQO was decided.
9. The Minister argues that the Tribunal should adopt the dissenting judgment of McColl JA in AQO, as her Honour held that regard may also be had to the 2013 amendment, which inserted sub-paragraph (a1) into the definition of "public sector agency" in the PPIPA Act. She observed that while taking an amendment into account in determining the scope of prior legislation is a curious way of revealing parliamentary intention at the time of passing the earlier provision, where the legislature evinces an intention to expand the ambit of the Act in remedial legislation, that is a relevant indication of the provision's otherwise intended narrower operation. In that context, the 2013 amendment indicated both a legislative assumption that the PPIPA did not extend to a political office holder and the improbability that it otherwise intended the definition to extend to a Minister.
10. Her Honour held that it was relevant to recognise that the 2013 amendment was made after the legislature received the Privacy Report stating that the PPIPA did not apply to a Minister and recommending that it be amended to so apply, yet chose not to take that course. That inaction is relevant to the legislative history and "tells in favour of not departing from" the meaning the Privacy Report had communicated to the legislature.
11. The Minister argues that para (d) was entirely replaced from 1 September 2021, following the commencement of Sch 4 cl 4.85 of the Public Sector Finance Legislation (Repeal and Amendment) Act 2018 (NSW) (the 2018 Amendment Act), which renamed the Public Sector Finance Act, as the Government Sector Audit Act (the GSA Act).
12. Following the commencement of the 2018 Amendment Act, the task of interpreting para (d) involves consideration of its words and references to constructions that were placed on its statutory predecessor: see Bushnell at p 425. Further the majority's view in AQO may apply to the present version of para (d), but only if the statutory text so permits: see Baini at [15].
13. I am satisfied that the 2018 Amendment Act was passed as a cognate Act and not as remedial legislation in relation to the PPIPA.
14. I am satisfied that neither the PSFA nor the GSA Act expressly define an auditable entity as including a Minister and there is no extrinsic material that evidence any Parliamentary intention to include a Minister in that definition. In fact, s 3.4(4) of the GSFA expressly provides that a GSF agency does not include a Minister (except to the extent to which Part 6 provides for a Minister to be treated as a GSF agency).
15. The Minister argues that Part 2.6 of the GSFA deals with matters including the entry of GSF agencies into financial services and arrangements. However, in this case, there could be no argument that the Minister was exercising functions under Part 6 of the GFSA in engaging in the alleged conduct, so as to be treated as a GSF agency.
16. I accept this argument, as it is consistent with the Court of Appeal's approach in ICI, which has been extracted previously in this decision.
17. I also accept the Minister's argument that the GSFA uses concepts of "responsible Minister" and "responsible authority" in a manner that assumes that a GSF agency will have a "responsible Minister" and "accountable authority," which is fundamentally inconsistent with Ministers themselves being a GSF agency.
18. I am satisfied that the Minister is not prescribed as an auditable entity in the GSA Regulation and she is therefore not captured as an auditable entity in the GSA Act.
19. I am also satisfied, based on Ms Vallance's evidence, which is not challenged, that the Minister is not captured by (c)(ii) of the GSA Act, as she is not an entity the financial reports or statements of which are subject to audit by the Auditor-General under the GSA, the GSFA or any other Act.

1. For these reasons, I make the following findings:

(1) The applicant's application for internal review dated18 December 2024 was not a valid application under s 53 of the PPIPA, as it was not made with respect to the alleged conduct of a public sector agency.

(2) As the applicant did not make a valid application for internal review under s 53 of the PPIPA, the Tribunal lacks jurisdiction to determine the current application for administrative review.

(1) The application for administrative review is dismissed for want of jurisdiction.

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.