Gill v Commissioner of Police, NSW Police Force; Attorney General of New South Wales as Intervenor

The Questions of Law

1. The Attorney General submits that the information responsive to items 1 and 4 of the access application raises the following questions of law which should be referred to the Supreme Court. 1. On its proper construction, does s 63(2) of the Telecommunications Act prohibit: 1. an agency processing, assessing and making a decision under s 58(1) of the GIPA Act with respect to government information that is "interception warrant information" within the meaning of s 6EA of the Telecommunications Act? 2. an agency providing an applicant with access to "interception warrant information" within the meaning of s 6EA of the Telecommunications Act under s 72(1) of the GIPA Act? 1. Insofar as the GIPA Act purports to authorise an agency to process, assess and make a decision with respect to "interception warrant information" within the meaning of s 6EA of the Telecommunications Act, including to provide access to that information under s 58(1)(a) of the GIPA Act, is the GIPA Act inconsistent with s 63(2) of the Telecommunications Act and inoperative to the extent of the inconsistency by force of s 109 of the Constitution?

Principles applicable to the referral of a question of law

1. In Registrar of Births, Deaths and Marriages v FJG & FJH; Attorney General of New South Wales as Intervenor [2022] NSWCATAP 270 the Appeal Panel ultimately decided to refer certain questions of law to the Supreme Court. At [42] - [45] of the reasons for decision in considering what constituted a question of law for the purposes of s 54 of the Civil and Administrative Tribunal Act, the Appeal Panel observed: 42 Part of the difficulty in defining and understanding what is meant by a question of law is that it does not have a single meaning but takes its meaning from the text and context in which it is used in the statute conferring power on the referring body: Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390; [2010] HCA 32 at [89] (Kostas). As Spigelman CJ had earlier noted in Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653; [2000] NSWCA 199 at [28]: "What is, or is not a question of law may even vary where the phrase is used consistently within a statute, depending on context." 43 Thus, Rothman J considered in Assadourian v Roads and Traffic Authority of New South Wales (Northern Region) [2011] NSWSC 1052 at [35] that there was "a distinction between a question of law that may be referred [to the court] and a question of law that may be appealed", when considering the relevant provisions of the former ADT Act. A similar distinction was drawn in Cobar Management at [47], where Bathurst CJ and Bell P noted: "Where a statute affords a right of appeal on a question of law, it will necessarily be the case that the court at first instance will have found facts and applied the law to those facts to result in final orders. Where, on the other hand, a question of law may be referred to another court "for determination", that language suggests that the question will not already have been "determined" by the Court seised of the matter and, as such a reference may occur during or in the course of a hearing, facts will not (or will not usually) have been found by the court referring the question of law for determination." 44 However, we accept the Attorney General's submission that the questions he seeks to have referred to the Court are solely focused on the construction of s 45 of the NSW Act and the extent to which that provision would authorise the "correction" to the Register sought by the respondents. 45 As Basten JA said (with Bergin CJ in Eq agreeing) in Health Care Complaints Commission v Karasingham [2007] NSWCA 267 at [46]: "Once it is accepted that construction of a statutory provision will usually involve consideration of words in their context, and that this will involve a question of law, it can readily be seen that most questions of construction will involve questions of law. That approach gains support from the obligation imposed by s 33 of the Interpretation Act 1987 (NSW) (which has its equivalents in most jurisdictions) to adopt a construction that will promote the purpose or object underlying an Act or statutory rule. The identification of that purpose or object is itself likely to involve a question of law."

Attorney General's submissions

1. The Attorney General submits that the first question sought to be referred to the Supreme Court is focused on the construction of s 63 (2) of the Telecommunications Act and the conduct that it prohibits and that is a question of law. The second question sought to be referred to the Supreme Court is whether the interaction between ss 9(1), 58(1) and 72(1) of the GIPA Act and s 63(2) of the Telecommunications Act, properly construed, gives rise to an inconsistency within the meaning of s 109 of The Constitution (Cth) and that is a question of law arising under the Constitution.
2. Section 109 of the Constitution provides that: When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
3. Section 9(1) of the GIPA Act provides that a person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 of the Act. Section 5 of the GIPA Act provides that there is a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure.
4. Section 12 of the GIPA Act sets out the public interest test as follows: There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
5. Section 14 of the GIPA Act relevantly sets out the following in relation to the public interest considerations against disclosure: (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. …
6. The Telecommunications Act is not included in the list of overriding secrecy laws in clause 1 of schedule 1 of the GIPA Act. However, the Attorney General submits that the GIPA Act contemplates that secrecy laws not listed in clause 1 of Schedule 1 as "overriding secrecy laws" will be taken into account as considerations against disclosure in applying the public interest test.
7. Item 6(1) of the Table referred to in s 14(2) provides that: There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions.
8. It is submitted that a reference in 6(1) to "disregarding the operation" of the GIPA Act is a reference to disregarding the operation of s 11, which provides that: This Act overrides a provision of any other Act or statutory rule that prohibits the disclosure of information (whether or not the prohibition is subject to specified qualifications or exceptions), other than a provision of a law listed in Schedule 1 as an overriding secrecy law. overrides a provision of any other Act or statutory rule that prohibits the disclosure of information (whether or not the prohibition is subject to specified qualifications or exceptions), other than a provision of a law listed in Schedule 1 as an overriding secrecy law."
9. Section 7(1) of the Telecommunications Act prohibits the interception of a communication passing over a telecommunications system. Section 7(2) contains a number of exclusions in relation to that prohibition, including s 7(2) (b) excludes the interception of a communication under a warrant.
10. The term 'interception warrant' is defined in s 5 of the Telecommunication Act as a warrant issued under Chapter 2. Section 39, which is contained in Chapter 2, sets out when and how an agency may apply for a warrant.
11. Section 6EA Telecommunications Act defines interception warrant information as: 6EA Interception warrant information A reference in this Act to interception warrant information is a reference to: (a) information about any of the following: (i) an application for an interception warrant; (ii) the issue of an interception warrant; (iii) the existence or non‑existence of an interception warrant; (iv) the expiry of an interception warrant; or (b) any other information that is likely to enable the identification of: (i) the telecommunications service to which an interception warrant relates; or (ii) a person specified in an interception warrant as a person using or likely to use the telecommunications service to which the warrant relates.
12. Section 63 of the Telecommunications Act provides that a person must not "deal in" interception warrant information. Subsection 63 (2) provides that: (2) Subject to this Part and section 299, a person must not, after the commencement of this subsection: (a) communicate interception warrant information to another person; or (b) make use of interception warrant information; or (c) make a record of interception warrant information; or (d) give interception warrant information in evidence in a proceeding.
13. Proceedings are defined in s 5(1) of the Telecommunications Act as including a proceeding before a Tribunal in Australia.
14. There are exceptions to the prohibitions in s 63 (2) and some proceedings are exempt, however it is submitted by the Attorney General that none of the exceptions apply to the information the subject of items 1 or 4 of Mr Gill's GIPA access application.
15. The Attorney General submits that the access to information sought by the applicant in items 1 and 4 of the GIPA access application is information about an application for an interception warrant and is therefore interception warrant information. The Attorney General also submits that there is no exception to s 63(2) of the Telecommunications Act, that permits the "communication" of interception warrant information between staff members of the New South Wales Police Force for the purposes of considering an access application under the GIPA Act.
16. The Attorney General argues that the Commissioner of Police would not be able to provide the interception warrant information the subject of items 1 and 4, to the Tribunal because that would involve giving interception warrant information in evidence in proceedings and would be in contravention of s 63(2) of the Telecommunications Act. Section 11 of the GIPA Act does not have the effect of overriding the provisions of the Telecommunications Act that prohibit the disclosure of information (including, relevantly, s 63(2)). That is because the reference to "any other Act or statutory rule" in s 11 should be read as a reference to "any other Act or statutory rule" of NSW because of the "localising principle" contained in s 12(1)(b) of the Interpretation Act 1987 (NSW), which also reflects the common law presumption against extraterritoriality.
17. To resolve the constitutional question and to form an opinion about the limits of the Tribunal jurisdiction, the Tribunal would need to objectively assess whether an inconsistency arises.
18. In Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 the Court stated at [25]-[26]: A tribunal that is not a court and that is invested with non-judicial power correspondingly has authority - in the exercise of non-judicial power - to "make up its mind" or "'decide' in the sense of forming an opinion" about the limits of its own jurisdiction "for the purpose of determining its own action"[30]. The authority is not to "reach a conclusion having legal effect" but to form an opinion for the purpose of "moulding its conduct to accord with the law"[31]. The jurisdiction of a State tribunal that is not a court of the State within the meaning of s 77(ii) and s 77(iii) of the Constitution on which State judicial power is conferred by State legislation is to be understood in conformity with the same principles. The State tribunal must be taken to have incidental jurisdiction to determine whether the hearing and determination of a particular claim or complaint would be within the legislated limits of its State jurisdiction. The Federal Court[32] and the Court of Appeal of the Supreme Court of New South Wales[33] have correctly so held.
19. Accordingly, the Tribunal has incidental jurisdiction to determine whether the hearing and determination of the GIPA application raises the issue of inconsistency and whether it would be within the Tribunal's power to determine the GIPA application. In the event the Tribunal were to determine that there is an inconsistency then the Tribunal could decline to deal with those parts of the GIPA application.

Should the Tribunal refer the questions of the law to the Supreme Court?

1. Section 54 of the NCAT Act confers a discretion as to whether the questions of law should be referred to the Supreme Court. In FJG, the Appeal Panel set out a non-exhaustive list of factors that that may be considered in exercising the discretion at [55] - [56]: 55 Factors in favour of referral may include: (1) a situation where there is no existing authoritative statement from an appellate court on the question of law: CTS v NSW Trustee and Guardian [2017] NSWCATAD 119 (CTS) at [14] (although this cannot be determinative: Milner v Commissioner of Police, NSW Police Force [2017] NSWCATOD 37 (Milner) at [14]; (2) that the decision may have an impact broader than on the immediate parties and where, regardless of the outcome, an appeal is likely: CTS at [15]; Milner at [14]; (3) that a determination by the Supreme Court may truncate the legal process by avoiding the possibility of an appeal after a decision is made by the Appeal Panel: Independent Liquor and Gaming Authority v Auld [2018] NSWCATAP 68 at [24]. 56 Factors weighing against making a referral may include: (1) that NCAT and its Appeal Panel may resolve all the issues, including the questions of fact, justly, quickly and cheaply: CTS at [18]; also see NCAT Act, s 36; (2) where the issues to be determined "are matters which the Tribunal routinely determines" and "are not particularly novel nor do they raise matters of public interest which have not previously been dealt with by the Tribunal": ALZ v WorkCover NSW [2015] NSWCATAD 241 (ALZ) at [8]; (3) where there is a remedy available, such as to appeal against the Appeal Panel decision in the normal course: ALZ at [8]; (4) that NCAT has a clear view about its duty and role, and the proper process is generally for questions of law to be determined initially by this Tribunal. NCAT is as well-placed as anyone to determine matters of public importance: Milner at [16], citing Legal Services Commissioner v Bryden [2009] NSWADT 76. This is particularly so where it is clear from the enabling act that Parliament intended that disputes between the parties would preferably be determined by NCAT: Kincumber Nautical Village Pty Ltd v Morris [2020] NSWCATAP 263 at [16]; (5) that experience has shown that procedures that fragment the hearing and disposition of proceedings have generally been found to produce difficulty and delay rather than speed and efficiency. There have been many instances in which procedures of that kind have produced unfortunate results, as it is difficult to anticipate exactly what will be necessary for an efficient referral of a question. It is also to be borne in mind that referral of the question of law to the Supreme Court would be removing the matter into a costs jurisdiction: Milner at [21].
2. Having considered the submissions of the parties and the intervenor and having weighed up the relevant factors I have decided not to refer the questions of law to the Supreme Court.
3. On balance, I conclude that the better course of action is to avoid fragmenting the proceedings and for the application to remain in the Tribunal and proceed in the ordinary way.
4. Parties will have an opportunity as part of the substantive review proceedings to make submissions regarding the issue of inconsistency raised by items 1 and 4.
5. The respondent submits that in FJG at [58], the Appeal Panel decided to refer the questions of law and attached particular significance to the fact that the Tribunal could not make a decision concerning the interpretation of the constitutional issue in that case in a final or binding sense. In FJG, the Appeal Panel stated at [6] - [7]: 6 As there are related questions going to the proper construction and effect of the Cth Act and the operation of s 109 of the Constitution, which NCAT and its Appeal Panel can form an opinion about in administrative proceedings, but cannot conclusively determine, the Attorney General also intends to seek to have the Court determine those issues, by declaration. 7 Those separate (but related) constitutional issues do not form part of the referral requested by the parties. NCAT is not able to refer federal constitutional law questions to the Court for its opinion.
6. In my view the circumstances of the present proceedings differ from the circumstances in FJG. The Appeal Panel stated at [29]: In addition, the Attorney General intends to seek further declarations from the Court about the proper construction and effect of the Cth Act and s 109 inconsistency. He proposes to lodge a notice of a constitutional matter in those proceedings, once commenced, to ensure that all proper parties with an interest in the outcome of the proceedings may participate. A draft s 78B, Judiciary Act 1903 (Cth) notice in that regard is before us.
7. The present proceedings differ from FJG as neither the respondent nor the Attorney General has indicated they are seeking declarations by the Supreme Court and there is no evidence before me of a notice in that regard.

Broader impact and consequences for contraventions of s 63(2) of the Telecommunications Act

1. The Attorney General submits that there are serious consequences attached to contraventions of s 63(2) of the Telecommunications Act, which include a maximum of two years imprisonment. The Attorney General submits that the release of interception warrant information under the GIPA Act in contravention of s 63(2) would undermine the clear purpose of the prohibition and have implications for agencies' ability to conduct effective law enforcement operations and that the purpose of the prohibition in s 63(2) is not only to protect privacy, but also to assist law enforcement.
2. The Attorney General also submits that the questions of law sought to be referred will have an impact beyond the immediate parties to these proceedings and that there is a public policy benefit in having the questions referred to the Supreme Court because a binding determination by the Court as to whether the provisions are inconsistent would provide guidance to agencies as to how to deal with access applications capturing interception warrant material in the future.
3. Section 100 of the GIPA Act specifically provides that a person who is aggrieved by a reviewable decision of an agency may apply to NCAT for an administrative review of the decision. Parliament intended that administrative reviews of decisions made under the GIPA Act would be determined by NCAT.
4. After the Tribunal has made the determination, it is open to the respondent to seek a stay or appeal a decision of the Tribunal to avoid any purported consequences attached to contraventions.

The decision may be appealed.

1. The Attorney General makes submissions that there is no existing authoritative statement from an appellate court on whether s 63(2) of the Telecommunications Act is inconsistent with s 9(1) of the GIPA Act.
2. I have not been provided with any appellate authority regarding the relevant inconsistency. However, the Tribunal dealt with a similar issue in Ruyter's v Commissioner of Police [2021] NSWCATAD 41. One issue was whether there was an inconsistency between s9(1) of the GIPA Act and s 63(2) of the Telecommunications Act. In Ruyter's the respondent argued that s 9(1) of the GIPA Act was inconsistent with s 63 of the Telecommunications Act. The Tribunal concluded that it would only be necessary to decide the constitutional issue if the Commissioner had otherwise failed to discharge his burden under s 105 of the GIPA Act of establishing that the decision under review was justified: at [58].
3. The Attorney General submits that Ruyter's was incorrectly decided and that if the Tribunal were to reach the same conclusion as in Ruyter's in these proceedings, it is likely the respondent would appeal to the Appeal Panel. He submits that, alternatively, if the Tribunal were to accept the Attorney General's submissions in these proceedings, there would be two conflicting first instance decisions on the relationship between s 9(1) of the GIPA Act and s 63 of the Telecommunications Act and that would do little to resolve the uncertainty as to how agencies should deal with future access applications concerning "interception warrant information" within meaning of the Telecommunications Act. The Attorney General submits that a determination by the Supreme Court may truncate the legal process by avoiding the possibility of an appeal to the Appeal Panel in relation to items 1 and 4 of the GIPA access application.
4. I am not of the view that the circumstances and questions of law which arise in these proceedings warrant the truncation of the usual process. Whether a decision would be appealed is a matter of speculation. The appeal process provided for by legislation is the usual and proper process for questions of law to be determined. A departure from that process requires more than speculation that a decision may be appealed or that a decision may result in two different first instance outcomes. Appeal Panel decisions regularly resolve matters in which conflicting decision in proceedings have been made.
5. If the proceedings continue in the usual way, then, in accordance with s 38(5)(c) of the NCAT Act, the parties will have a reasonable opportunity to be heard and have their submissions considered in relation to the question of jurisdiction and the question of law. If any party wishes to challenge the Tribunal's decision, they may initiate an internal appeal as of right on a question of law to the Appeal Panel under s 80(2)(b) of the NCAT Act. Further an appeal panel or appellate court will have the benefit of the determination of those first instance proceedings.

Efficiency and cost

1. In Milner v Commissioner of Police, NSW Police Force [2017] NSWCATOD 37 the Tribunal stated at [21]: 21 Experience has also shown that procedures that fragment the hearing and disposition of proceedings have generally been found to produce difficulty and delay rather than speed and efficiency. There have been many instances in which procedures of that kind have produced unfortunate results, as it is difficult to anticipate exactly what will be necessary for an efficient referral of a question. It is also to be borne in mind that referral of the question of law to the Supreme Court would be removing the matter into a costs jurisdiction.
2. I note the Attorney General has made submissions that costs would not be sought and takes the position that each party would bear their own costs in the Court.
3. The Attorney General submits that if the Supreme Court holds that s 9(1) of the GIPA Act is inconsistent with s 63(2) of the Telecommunications Act, that will resolve the dispute between the parties in relation to items 1 and 4 of the access application, leaving the Tribunal to determine only the remaining issues. He submits that it would also be open to the Tribunal to refer the questions of law sought while continuing to progress the proceedings in respect of the remaining information sought in the GIPA access application and the issues with respect to items 1 and 4 can be severed with minimal delay to the rest of the proceedings.
4. The Attorney General submits that the questions sought to be referred are preliminary questions that will provide guidance to the parties and the Tribunal as to the interaction between State and Commonwealth legislation and given the confined scope of the questions sought to be referred, and the limited basis on which the Attorney General has intervened, the risk of a referral producing difficulty and delay rather than speed and efficiency is, in the Attorney General's submission, low.
5. I do not find that the fragmenting of the proceedings in the way suggested is efficient or cost effective. Severing items 1 and 4 from consideration by the Tribunal would not be efficient or necessarily dispose of the entirety of the proceedings. Depending on how the questions of law are decided by the Supreme Court (if they are decided at all) items 1 and 4 may subsequently need to be decided by the Tribunal in any case.
6. For the reasons given, I find that the circumstances of this case weigh against referring the questions of law to the Supreme Court is refused.

Order 1. The application for referral of questions of law to the Supreme Court is refused.

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 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: 11 April 2024