Ms Wojciechowska is challenging the Civil and Administrative Tribunal's (NCAT's) authority to decide her application under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). In Burns v Corbett [2018] HCA 15 the High Court decided that NCAT did not have authority to decide a proceeding brought under the Anti-Discrimination Act 1977 (NSW) if the parties were residents of different States. Ms Wojciechowska argues that the same principle applies to proceedings brought under the GIPA Act where one party is the State of New South Wales and the other party is a resident of a different State. We have decided that the same principle does not apply because in administrative review proceedings under the GIPA Act, NCAT is not exercising State judicial power. It is conducting a merits review of a decision of the executive government. For that reason, we have dismissed this ground of appeal.
After consulting with the parties, we have dispensed with a hearing of this ground of appeal pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act). The remaining grounds of appeal are yet to be determined.
[2]
Tribunal was exercising its administrative review jurisdiction
Ms Wojciechowska applied to the Blue Mountains City Council for access to certain information. She was not satisfied with the Council's decision and applied to the Tribunal for a review of the decision. The GIPA Act provides that the Tribunal may review certain kinds of decision made by an administrator under that legislation: GIPA Act, s 100.
NCAT has various kinds of jurisdiction. For example, it has general jurisdiction to decide matters between two individuals under the Anti-Discrimination Act. When determining applications under the GIPA Act, the Tribunal is exercising its administrative review jurisdiction: NCAT Act, s 28(2) and s 30; Administrative Decisions Review Act 1997 (NSW) (ADR Act), s 9(1). When doing so, the Tribunal is conducting what is known as a merits review of the government agency's decision. In the words of the statute, it "is to decide what the correct and preferable decision is having regard to the material then before it": ADR Act, s 63(2). NCAT may "exercise all of the functions that are conferred or imposed by . . . on the administrator who made the decision": ADR Act, s 63(2). NCAT must give effect to any relevant government policy "except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case": ADR Act, s 64(1).
[3]
The Tribunal is not exercising State judicial power when determining an application under the GIPA Act
[4]
Relevant provisions
Section 71 of the Constitution vests "the judicial power of the Commonwealth" in the High Court, and "such other courts as it invests with federal jurisdiction".
71 Judicial power of the courts
The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction.
The scope of "the judicial power of the Commonwealth" (federal jurisdiction) is defined by the "matters" set out in s 75 and s 76 of the Constitution. The "matter" the subject of these proceedings is identified in s 75(iv):
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.
We accept that the Blue Mountains City Council is the State of NSW and Ms Wojciechowska is a resident of a different State - Tasmania. On those facts, these proceedings constitute a "matter" "between a State and a resident of another State": Constitution (Cth), s 75(iv).
With respect to the matter in s 75(iv), s 77 (iii) confers power on the Commonwealth Parliament to make laws "investing any court of a State with federal 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(1) and (2) of the Judiciary Act 1903 (Cth) confer a general federal jurisdiction on State courts to determine matters within ss 75 and 76 of the Constitution. The combined effect of all these provisions is that the exercise by a State court of adjudicative authority in respect of any of the matters listed in ss 75 and 76 of the Constitution, is an exercise of federal jurisdiction. That is the case regardless of whether the law to be applied is Commonwealth or State law: Rizeq v Western Australia (2017) 344 ALR 421, [55] (Bell, Gageler, Keane, Nettle and Gordon JJ).
As NCAT is not a "court of a State" within the meaning of that term in s 77(iii) of the Constitution, it does not have authority to decide matters within federal jurisdiction: Burns v Corbett [2018] HCA 15 at [39]. The question for us is whether the Tribunal is exercising State judicial power when determining an application for review under the GIPA Act. If it is, it does not have the authority to do so when the proceedings are between a State and a resident of a different State.
At [21] of Burns v Corbett, the High Court (Kiefel CJ, Bell and Keane JJ) set out the nature of judicial power, which was referred to as "adjudicative authority": (footnotes deleted)
It is convenient to note here that the term "jurisdiction", as it is used in the context of Ch III, is concerned with the exercise of adjudicative authority for the purpose of "quelling controversies about legal rights and legal obligations through ascertainment of facts, application of law and exercise, where appropriate, of judicial discretion". That function is the characteristic function of the courts, albeit that, under the constitutions of the States, adjudicative authority may be vested in organs other than those recognised as courts within Ch III of the Constitution.
Kiefel CJ, Bell and Keane JJ noted at [27], that the parties had agreed that when deciding proceedings under the Anti-Discrimination Act, the Tribunal was exercising State judicial power. That was the case for several reasons including the nature of the available remedies and the enforceability of those remedies. Their honours referred to the following reasons for that finding given by the Court of Appeal at [30] (Burns v Corbett (2017) 316 FLR 448 (Leeming JA, with Bathurst CJ and Beazley P agreeing)):
All parties agreed that NCAT, in hearing and determining Mr Burns' complaints, was exercising judicial power. They were correct to do so. NCAT was determining whether there had been a contravention of the Anti-Discrimination Act, and, if so, whether a remedy should issue (which could include damages, an injunction, or an apology). If NCAT made such an order, Mr Burns could unilaterally obtain a certificate from NCAT's registrar which, when registered in a court, then "operates as a judgment of the Court": Civil and Administrative Tribunal Act, s 78 (monetary orders); Anti-Discrimination Act s 114 (non-monetary orders). In that way, Mr Burns would be able to obtain a binding, authoritative and curially enforceable judgment independently of the consent of the person against whom his complaint had been brought. Indeed, the pending prosecution of Ms Corbett for contempt starkly illustrates the enforceability of such orders.
The Victorian Civil and Administrative Tribunal (VCAT) has considered whether that Tribunal was exercising judicial power when reviewing a decision to grant a permit under s 77 of the Planning and Environment Act 1987 (Vic). In Barnsley v Darebin City Council [2021] VCAT 104, Quigley J held that the exercise of power under that provision is an exercise of administrative power, not judicial power. Her honour quoted the following principle from PJB v Melbourne Heath (2011) 39 VR 373 at [124] (Patrick's case):
it is a judicial function to make binding determinations of existing legal right, while it is an administrative function to exercise discretionary authority to make orders creating new rights and obligations, especially on the basis of policy considerations
That principle was derived, in part, from the requirement that for there to be a "matter", there must be an "immediate right, duty or liability to be established by the determination of the Court": Palmer v Ayres [2017] HCA 5 at [27] citing In re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265. Applying that principle, Quigley J concluded at [43], that:
The grant of a planning permit pursuant to the provisions of the P&E Act is not an adjudication on an existing right, liability or duty. It is the exercise of administrative power. The review of the responsible authority's decision by the Tribunal pursuant to the provisions of the P&E Act and the VCAT Act is a review of the initial administrative decision in which the Tribunal stands in the shoes of the original decision-maker. The decision of the Tribunal in the grant of a permit creates a new right. It does not determine existing rights. The power exercised by the Tribunal fits squarely within such a definition of an exercise of administrative power.
NCAT has also considered a similar issue in relation to the review of conduct under s 53 of the Privacy and Personal Information Protection Act 1998 (NSW). In EFB v Commissioner of Police, NSW Police Force [2021] NSWCATAD 55 at [39] the Tribunal found that NCAT "may make findings of fact and apply the law, but it does not determine the legal rights and obligations of parties". In concluding that NCAT was exercising administrative rather than judicial power, the Tribunal also took into account other factors. The first was that the Tribunal cannot enforce the orders it makes under the Privacy and Personal Information Protection Act. The second was the qualified requirement to give effect to government policy. The third was that most members of the Tribunal do not have the tenure and protection comparable to that held by judges: EFB v Commissioner of Police, NSW Police Force [2021] NSWCATAD 55 at [36]-[40].
In obiter remarks in Morris v Riverwild Management Pty ltd (2011) 38 VR 103, [63] Weinberg JA distinguished VCAT's "original jurisdiction" from its "review jurisdiction". When VCAT is determining a building dispute for example, it is exercising original jurisdiction. According to Weinberg J, when doing so VCAT is carrying out "a statutory function that in some ways resembles the exercise of judicial power". On the other hand, when exercising its review jurisdiction, "it is plainly engaged in a purely administrative task".
These cases all support the conclusion that the Tribunal is not exercising State judicial power when determining an application under the GIPA Act. It is exercising administrative power because it is conducting a merits review of a government decision. The Tribunal cannot directly enforce the orders it makes and it must give effect to any relevant government policy unless that policy produces an unjust decision. It follows that NCAT has adjudicative authority to determine applications under the GIPA Act even if one party is the State of NSW and the other party is a resident of a different State.
[5]
Orders
1. The appeal on the ground that the Tribunal does not have authority to decide the appellant's application under the Government Information (Public Access) Act 2009 (NSW) is dismissed.
[6]
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: 22 June 2021