[2009] HCA 27 at [33]
Attorney General for New South Wales v Gatsby (2018) 99 NSWLR 1 at 61
(2018) 361 ALR 570
Source
Original judgment source is linked above.
Catchwords
(2009) 83 ALJR 951(2009) 258 ALR 14[2009] HCA 27 at [33]
Attorney General for New South Wales v Gatsby (2018) 99 NSWLR 1 at 61(2018) 361 ALR 570340 FLR 171[2018] NSWCA 254
Barnsley v Darebin CC [2021] VCAT 104
Bignill v DPP (2016) 91 NSWLR 619257 A Crim R 47974 MVR 357[2016] NSWCA 13
Burns v Corbett (2018) 265 CLR 304(2018) 92 ALJR 423(2018) 353 ALR 386[2018] HCA 15 at [39]
Burns v CorbettGaynor v Burns (2017) 96 NSWLR 247(2017) 343 ALR 690(2017) 316 FLR 448[1921] 27 ALR 193[1921] HCA 20
Minister for Education and Early Childhood Learning v Zonnevylle (2020) 103 NSWLR 91[2020] NSWCA 232 at [45]
Morris v Riverwild Management Pty Ltd (2011) 38 VR 103 at [63](2011) 284 ALR 413[2011] VSCA 283
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197
(1988) 62 ALJR 389
(1988) 79 ALR 9
[1988] HCA 32
PJB v Melbourne Health (2011) 39 VR 373 at [124]
[2011] VSC 327
Palmer v Ayres (2017) 259 CLR 478
(2017) 91 ALJR 325
(2017) 341 ALR 18
12 BFRA 425
[2017] HCA 5 at [27]
Pirrie v McFarlane (1925) 36 CLR 170
31 ALR 365
[1925] HCA 30
Rizeq v Western Australia (2017) 262 CLR 1
(2017) 91 ALJR 707
(2017) 344 ALR 421 at [55]
57 Fam LR 294
[2017] HCA 23
Sunol v Collier (2012) 81 NSWLR 619
(2012) 258 FLR 282
[2012] NSWCA 14
Sunol v Collier [2009] NSWADTAP 34
Walton v Gardiner (1993) 177 CLR 378 at 383
(1993) 67 ALJR 485
(1993) 1993 ALJR 485
(1993) 112 ALR 289
Judgment (17 paragraphs)
[1]
f Police [2021] NSWCATAD 328
Wojciechowska v Commissioner of Police [2021] NSWCATAD 210
Wojciechowska v Commissioner of Police (No 2) [2020] NSWCATAD 310
Wojciechowska v Secretary, Department of Communities and Justice [2021] NSWCATAD 298
Sagacious Legal Pty Limited v Wesfarmers General Insurance Limited [2010] FCA 428
State Bank of New South Wales v Commonwealth Savings Bank of Australia (1986) 4 NSWLR 549 Amrit Lal Narain v Parnell (1986) 9 FCR 479 at 489
Texts Cited: None
Category: Principal judgment
Parties: Paulina Wojciechowska (Applicant)
Commissioner of Police (Respondent)
Representation: Solicitors:
Applicant (Self Represented)
Crown Solicitor (Respondent)
File Number(s): 2021/00333475
Publication restriction: None
[2]
Overview
On 1 September 2021, Ms Wojciechowska (the applicant) applied to the respondent for access to certain information under the Government Information (Public Access) Act 2009 (the GIPA Act).
The applicant is challenging the Tribunal's authority to decide her application under the GIPA Act and she relies on the decision of the High Court in Burns v Corbett [2018] HCA 15 (Burns), that NCAT did not have authority to decide proceedings brought under the Anti-Discrimination Act 1977 (NSW) if the parties were residents of different States. She argues that this principle also applies to proceedings brought under the GIPA Act and seeks the following interlocutory orders:
1. Pursuant to s 54 of the Civil and Administrative Decisions Tribunal Act 2013 (the CAT Act), the question of whether the power granted in s 100 of the GIPA Act is judicial or executive in nature is referred to the Supreme Court of NSW subject to the President's consent in writing.
2. These proceedings are stayed pending the determination of the issue referred by order (1) to the Supreme Court of NSW.
For the reasons that follow, I have decided that this principle does not apply to administrative review proceedings under the GIPA Act, because in determining proceedings of that nature the Tribunal is not exercising State judicial power, but is conducting a merits review of a decision of the executive government. Therefore, the application to refer a question of law to the Supreme Court, subject to the President's consent in writing, is dismissed.
[3]
Background
On 23 November 2021, the applicant filed an application for administrative review, which sought a review of a decision made by the respondent dated 29 September 2021 (the reviewable decision) under the GIPA Act, on sixteen grounds.
The application does not indicate when the applicant became aware of the reviewable decision, but I am satisfied that the application was lodged within 60 days of the date of that decision.
A case conference was scheduled on 20 December 2020. However, on that day, and before the case conference occurred, the applicant challenged the Tribunal's jurisdiction to hear and determine her application by filing and serving a document titled "Short Minutes of Orders". This sought the following orders:
1. Pursuant to s 54 of the Civil and Administrative Decisions Tribunal Act 2013 (the CAT Act), the question of whether the power granted in s 100 of the GIPA Act is judicial or executive in nature is referred to the Supreme Court of NSW.
2. These proceedings are stayed pending the determination of the issue referred by order (1) to the Supreme Court of NSW.
The document also contained a "Summary of Arguments".
Senior Member Perrignon conducted the case conference on 20 December 2021 and on 22 December 2021, he issued the following orders:
1. Noting that on 20 December 2021 prior to case conference the applicant provided Short Minutes of Order to the Tribunal and the respondent specifying a question of law for referral to the Supreme Court and seeking a stay of proceedings until its determination by that Court, that the applicant sought orally sought to amend the question of law at case conference, and that the requested referral of law was opposed by the respondent, on or before 7 January 2022 the applicant is to file and serve the following: (a) the question of law which she seeks to be referred to the Supreme Court, with any application for a stay of proceedings if sought, and (b) submissions in support.
2. The respondent is to file and serve submissions in response by 19 January 2022.
3. The issues as to whether, subject to the President's consent, the question of law should be referred to the Supreme Court, and whether the proceedings should be stayed pending its determination, are fixed for hearing on 28 January 2922 at 10am by phone, for a half day.
4. By consent of the parties, having regard to the fact that the applicant resides in Tasmania, compliance with rule 16(2) is dispensed with.
[4]
Applicant's written submissions
The applicant stated that Tribunal Members are bound by: (1) The Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act); (2) The Legal Profession Uniform Law (LPUL); (3) The Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) or the Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015 (NSW) (depending on whether they are a solicitor or a barrister); (4) NCAT Member Code of Conduct; (5) Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (Aon); (6) Pirrie v McFarlane [1925] HCA 30; and (7) Other common law and statutes as may be relevant. Pursuant to s 25 of the LPUL all Australian lawyers are officers of the Supreme Court of NSW. Pursuant to s 38(4) of the CAT Act the Tribunal members are to act in good conscience, which is an equitable obligation of a high standard.
The applicant asserted the following "relevant facts":
Fact (1): The Applicant is a resident of Tasmania.
Fact (2): The Applicant is a party to multiple (five in total) Tribunal proceedings pursuant to the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) involving respondents who are the State of NSW (including but not limited to the Commissioner).
Fact (3): The Applicant continues to make access applications under the GIPA Act and thy will most likely result in her seeking review under s 100 of GIPA Act.
Fact (4): The Applicant's husband, a resident of Tasmania, is also a party to a matter arising under s 100 of the GIPA Act to which the Commissioner is a party.
Fact (5): When beneficial to the Commissioner, the Commissioner is willing to act inconsistently with his model litigant duties and his other statutory dutie4s.
Fact (6): The commissioner has in the past unlawfully edited documents for the purposes of supporting the Commissioner's case at the Tribunal and of covering up the Commissioner's employees misconduct (eg serious misconduct of police officer Mills).
The applicant stated that the decision whether to make Order (1) "depends on the exercise of the discretion" and it is appropriate to exercise the discretion in favour of making Order (1), as this is consistent with the Tribunal's objects in s 3 of the CAT Act and the guiding principle in s 36 of the CAT Act.
The applicant argued that the case law relevant to the exercise of the discretion includes: Aon as well as NT88/800 and Commissioner of Taxation [1989] AATA 552. She asserted that it is in the interests of cheapness and quickness to refer this issue to the Supreme Court so that it can be resolved once and for all. If Order (1) is refused, she will "suffer a cumulative delay" that will be greater than a delay that would occur if Order (1) is made. She also felt it relevant that the of her matters delays the progress of other unrelated matters and therefore the impact on other litigants weighs heavily in favour of exercising the discretion her favour.
[5]
Respondent's written submissions
The respondent relied upon the written submissions of Karen Smith, Crown Solicitor, dated 20 January 2022. The respondent opposed the interlocutory application and submitted, relevantly:
Context
5. The applicant has a practice of filing review applications in the Tribunal, and then disputing the jurisdiction of the Tribunal to hear them. She appears to seek that the Local Court or District Court hear her matters, under the substituted proceedings mechanism in Part 3A of the Civil and Administrative Tribunal Act 2013 (NSW).
6. The Tribunal has rejected the applicant's argument on the following occasions:
(a) Wojciechowska v Commissioner of Police (No 2) [2020] NSWCATAD 310;
(b) Wojciechowska v Blue Mountains City Council [2021] NSWCATAP 179;
(c) Wojciechowska v Commissioner of Police [2021] NSWCATAD 210;
(d) Wojciechowska v Commissioner of Police [2021] NSWCATAD 284;
(e) Wojciechowska v Commissioner of Police (No 2) [2021] NSWCATAP 311;
(f) Wojciechowska v Secretary, Department of Communities and Justice [2021] NSWCATAD 298;
(g) Wojciechowska v Commissioner of Police [2021] NSWCATAD 328.
7. The resolution of each re-agitation of the argument involves a drain on the resources of the respondent and the Tribunal.
[6]
There is no power to refer this question to the Supreme Court
The respondent argued that in Sunol v Collier (2012) 91 NSWLR 619, the Court of Appeal (Bathurst CJ, Allsop P and Basten JA) determined that the Administrative Decisions Tribunal did not have the power to refer constitutional questions to the Supreme Court from proceedings in that Tribunal, which were conducted under a provision and in a statutory context that is materially identical to s 54 of the CAT Act.
In Attorney General for New South Wales v Gatsby (2018) 99 NSWLR 1 at 61 (Gatsby), Leeming JA said:
…I am also conscious that, in accordance with what was held in Sunol v Collier (2012) 81 NSWLR 619; [2012] NSWCA 14, NCAT was unable to avail itself of the course of referring a question of law to the Supreme Court pursuant to s 54 of the Civil and Administrative Tribunal Act 2013 (NSW)…
The issue in Gatsby was whether NCAT was a "court of a State", which was one component of the Burns constitutional implication. The referral application in this matter also involves a constitutional question, being another component of the same implication arising under the Constitution (Cth).. Accordingly, if this question was referred to the Supreme Court, the Court would decline to answer it (as occurred in Sunol). That would result in costs and resources being wasted.
[7]
The question lacks merit.
The respondent stated that many tribunal members have previously considered this question and have determined that the function of reviewing a decision under the GIPA Act is obviously an administrative, and not judicial, function. The Tribunal determines the correct and preferable decision, effecting a further tier of review by the executive government.
[8]
The referral is not a quick and cheap procedure.
The referral will not resolve the balance of the issues between the parties (whether the respondent's decision is the correct and preferable decision). Rather, it will merely delay the resolution of the proceedings and in circumstances where a large number of proceedings are commenced against the respondent, with most resulting in at least one appeal so far, the Tribunal should move those proceedings towards finality.
[9]
The application is vexatious.
The respondent argued that the applicant is persisting in a misconstruction of the Tribunal's jurisdiction that has been repeatedly rejected. That is vexatious: Minister for Education and Early Childhood Learning v Zonnevylle [2020] NSWCA 232 at [45]. The re-litigation of a matter already determined may amount to an abuse of process: Walton v Gardiner (1993) 177 CLR 378 at 383; [1993] HCA 77; Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 193 [33]; [2009] HCA 27. The respondent should not be put to further expense of the referral.
[10]
The applicant may apply for judicial review.
The respondent stated that it has been repeatedly explained to the applicant, that she is able to file a summons for judicial review in the Supreme Court if she is aggrieved by the Tribunal's determination of the jurisdictional issue. The fact that she has not done so tells strongly against referring the question.
There is also no evidence before the Tribunal that support either the applicant's allegations against the respondent's conduct or her allegation of "frequent misconduct of the Tribunal members". Rather, the applicant is dissatisfied with the Tribunal, prompting this protracted form shopping exercise, but if she does not want the Tribunal to determine her matters, she should withdraw them.
The respondent also reserved its rights to seek costs of the referral application.
[11]
Applicant's oral submissions
In her oral submissions, the applicant maintained that the Tribunal is exercising judicial power and it cannot determine her GIPA Act application because she is a resident of Tasmania it is not a court of a State. She argued that referring a question of law to the Supreme Court involves an exercise of discretion under s 3 of the CAT Act. The decision in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 applies and the referring the question of law will save costs for the Tribunal because the issue will be finally determined. She also argued that it "is an injustice" for the Tribunal to proceed based on its own opinion that it is exercising administrative power.
The applicant referred to the decision of the Appeal Panel of the Administrative Decisions Tribunal in Sunol v Collier [2009] NSWADTAP 34 (Sunol), which determined that a question of law should be referred to the Supreme Court. The Appeal Panel stated (at [11]) that it could not answer the questions posed by the appellant and these were also questions of general importance and involve substantial argument. She argued that based on Sunol, the mere fact that her argument is "a substantial one" and "is of general importance" is sufficient reason to grant her application.
[12]
Respondent's oral submissions
Mr Bell stated that there is binding authority from the Tribunal's Appeal Panel that it is not exercising judicial power in conducting an administrative review of a decision under the GIPA Act. The Tribunal has expressed this opinion in a number of matters involving the applicant and she has had ample opportunity to seek judicial review of those decisions, but she has not done so.
Mr Bell argued that referring a question of law to the Supreme Court would delay the determination of the substantive issues between the parties. In any event, the Tribunal has no power to refer constitutional issues to the Supreme Court. The decision in Burns is binding authority that a Tribunal cannot exercise judicial power of the Commonwealth, which appears to be what the applicant is asking it to do in this matter: Sunol v Collier [2012] NSWCA 14. In that matter, the "constitutional question" related to an implied freedom of political communication and the Court (Bathurst CJ, Allsop P & Basten JA) stated, relevantly:
19. Properly understood, s 118(1) empowers the Appeal Panel to refer to this Court "a question of law arising in the appeal", being a question of State law. That construction is consistent with the principle that a reference to any matter or thing in a New South Wales Act is a reference to such matter or thing "in and of New South Wales": Interpretation Act 1987 (NSW), s 12(1)(b); and the requirement that the Act be construed so as not to exceed the legislative power of the Parliament: s 31(1). Thus, although the Tribunal must take account of constitutional limitations, in accordance with covering cl 5 of the Constitution Act , it does not follow that such questions arise in an appeal before it, nor that it has power to refer such questions to the Supreme Court. The better view is that they do not arise in the appeal because they are not matters in respect of which it has jurisdiction under the Administrative Decisions Tribunal Act…
21. It follows from that analysis that the procedure adopted in the present case, involving a referral of a question pursuant to s 118 of the Administrative Decisions Tribunal Act was itself inappropriate. Each of the questions should therefore be answered, "Inappropriate to answer".
[13]
Applicant's oral submissions in reply
The applicant objected to the respondent describing the current proceedings as "vexatious" as each of her applications sought different documents. In Oceanic Sun Line Special Shipping Company Inc. v. Fay (1988) 165 CLR 197, the High Court considered the meaning of "vexatious" and "oppressive" and decided that the words overlap. The Court stated that "oppressive" should be understood as meaning seriously and unfairly burdensome, prejudicial or damaging while "vexatious" should be understood as meaning productive of serious and unjustified trouble and harassment. However, there is nothing unjustified in her raising a constitutional issue in the Tribunal and if she did not raise this she would not be assisting the Tribunal to exercise its functions.
The applicant asserted that the Court of Appeal was considering "a different issue" in Sunol, but the Court referred to the NSW Constitution and stated that it was bound by cl 5 of the Constitution (Cth). She argued that it is vexatious for the respondent to raise this matter.
The applicant maintained that the Tribunal is clearly conducting a judicial review of matters under the GIPA Act and she could apply to the Supreme Court for a prerogative writ, preventing the Tribunal from determining GIPA Act matters, but this could be expensive.
The applicant complained that the NSW Parliament created the administrative power and gave it to the Tribunal, but it did not consider whether the Tribunal could exercise the jurisdiction and, if it refuses to exercise the power, she is denied the ability to go to the Local Court or District Court.
The applicant also stated that it is irrelevant whether the Tribunal considers that her arguments are without merit, as in the 2009 decision in Sunol, the Appeal Panel stated that the question of merit is irrelevant in deciding whether to refer a question to the Supreme Court.
The applicant argued that the Tribunal is not bound by the decisions of its Appeal Panel, and that these are persuasive authority at best. She also denied that she has previously had "ample opportunity" to seek judicial review of the Appeal Panel's decisions.
Finally, the applicant argued that a request for referral to the Supreme Court is "not a constitutional issue". She referred to the decision in Sagacious Legal Pty Limited v Wesfarmers General Insurance Limited [2010] FCA 428, at [13], in which of Rares J stated:
Having now had the benefit of argument by the parties and time to reflect on it, I am satisfied that in truth no matter arises under the Constitution, or involves its interpretation, the subject of the s 78B notice in any event. And, that the position of counsel at the time the hearing commenced was correct. Notices were served out of an abundance of caution, as is often the case: see for example the remarks of Priestley JA in State Bank of New South Wales v Commonwealth Savings Bank of Australia (1986) 4 NSWLR 549 at 560G-561A. As Burchett J said in Amrit Lal Narain v Parnell (1986) 9 FCR 479 at 489, s 78B only operates when the circumstances that it postulates are made to appear to the Court. The section does not operate simply because a party asserts those circumstances, nor does it operate merely because the Court acts out of an abundance of caution in seeking to ensure that the trial does not miscarry for failure to give a notice in case it were required.
[14]
Consideration
The Tribunal has previously held that in determining an application under the GIPA Act, it is exercising the administrative review power conferred by ss 28(2) and 30 of the CAT Act and s 9(1) of the Administrative Decisions Tribunal Act 1997 (the ADR Act) and not State judicial power.
One of the matters in which that determination was made was Wojciechowska v Blue Mountains City Council [2021] NSWCATAP 179. The appellant (the applicant in this matter) sought to appeal against the Tribunal's on the ground that it did not have authority to decide her application under the GIPA Act. The Appeal Panel dismissed the appeal.
I reject the applicant's assertion that the Appeal Panel's determination of her jurisdictional challenge is not binding authority upon me. The Appeal Panel held that s 100 of the GIPA Act provides that the Tribunal may review certain kinds of decision made by an administrator under that Act and when it is determining an application under the GIPA Act, the Tribunal is conducting "a merits review" of the government agency's decision and s 63(2) of the ADR Act provides that it "is to decide what the correct and preferable decision is having regard to the material then before it". The Tribunal may "exercise all of the functions that are conferred or imposed by … on the administrator who made the decision": ADR Act, s 63(2), and it must also 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).
The Appeal Panel held that s 71 of the Constitution (Cth) vests "the judicial power of the Commonwealth" in the High Court, and "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 ss 75 and 76 of the Constitution (Cth). Section 75(iv) of the Constitution (Cth) provides that in all matters "between States, or between residents of different States, or between a State and a resident of another State", the High Court shall have original jurisdiction. As the applicant is a resident of Tasmania and the respondent is the state of NSW, these proceedings constitute a "matter" for the purposes of s 75(iv).
The Appeal Panel also held that s 77(iii) confers power on the Commonwealth Parliament to make laws "investing any court of a State with federal jurisdiction". Further, ss 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 (Cth). 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 (Cth), 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).
[15]
Conclusion
I am satisfied that the determination of the application seeking review of the respondent's decision, which was made under s 100 of the GIPA Act, is an exercise of administrative power.
Accordingly, it is appropriate to dismiss the applicant's application to refer the matter to the President for referral of a question of law to the Supreme Court of NSW.
[16]
Order
I make the following orders:
1. The Tribunal has authority to determine the applicant's application under the GIPA Act.
2. The application to refer the matter to the President for referral of a question of law to the Supreme Court of NSW is dismissed.
[17]
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: 02 March 2022
Parties
Applicant/Plaintiff:
Wojciechowska
Respondent/Defendant:
Commissioner of Police
Legislation Cited (10)
Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015(NSW)
On 20 January 2022, the applicant filed and served a document titled "Amended Short Minutes of Orders & Summary of Arguments and Facts" dated 17 January 2022, which sought the orders that are set out in para [2] above.
On 28 January 2022, the interlocutory application came before me for hearing. The Applicant was self-represented and Mr A Bell, of the Crown Solicitor's Office, appeared for the Respondent.
The applicant also argued that if Order (1) is refused, she will suffer substantial injustice because "it is extremely likely that the Commissioner will use the knowledge gained during the Tribunal hearings to dishonestly tweak his case for the court (including the alteration of documents)".
The applicant also argued that to proceed to hear the application for administrative review without certainty regarding the jurisdiction issue is inconsistent with the Tribunal's obligation to recognise the scarcity of its resources and the need to preserve them.
The applicant argued that if Order (1) is made, the Order (2) would not be necessary from the legal point of view. However, she stated that "from the practical point of view of frequent misconduct of the Tribunal members and the officers of the Tribunal's Registry, the Order (2) is necessary to avoid any "administrative errors" in favour of the Commissioner".
The applicant asserted that there is no constitutional issue before the Tribunal and the only issue is whether or not it is exercising judicial or administrative power in conducting a review of a decision under the GIPA Act. She concluded by asserting that if she was a resident of NSW, there would still be an issue about whether the power was judicial or administrative.
Mr Bell advised the Tribunal that he did not wish to respond to the applicant's submissions in reply.
Accordingly, the Appeal Panel held that as NCAT is not a "court of a State" within the meaning of that term in s 77(iii) of the Constitution (Cth), it does not have authority to decide matters within federal jurisdiction: Burns [2018] HCA 15 at [39]. At [21] of Burns, 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.
However, their Honours noted that the parties agreed that when deciding proceedings under the Anti-Discrimination Act, the Tribunal was exercising State judicial power and that this 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 (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 Appeal Panel also referred to the decision of the Victorian Civil and Administrative Tribunal (VCAT), in Barnsley v Darebin City Council [2021] VCAT 104, which 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). Quigley J held that the exercise of power under that provision is an exercise of administrative power, not judicial power, and 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.
This Tribunal 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 it was exercising administrative rather than judicial power, the Tribunal also took into account other factors, namely: (1) It cannot enforce the orders it makes under the Privacy and Personal Information Protection Act; (2) The qualified requirement to give effect to government policy; and (3) Most members of the Tribunal do not have the tenure and protection comparable to that held by judges.
Further, in obiter remarks in Morris v Riverwild Management Pty ltd (2011) 38 VR 103 (at [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 and, when doing so, it 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".
The Appeal Panel concluded that these cases all support the conclusion that the Tribunal is not exercising State judicial power when determining an application under the GIPA Act. Rather, 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.
As the Federal Court (per Bowen CJ and Deane J) noted in Drake v Minister for Immigration and Ethnic Affairs 40 FLR 409, at 419, the Tribunal sits in the shoes of the relevant administrator and makes the administrative decision afresh and that decision becomes the decision of the relevant administrator. It is this feature that distinguishes the power exercised by the Tribunal in its administrative review jurisdiction from that which is exercised in its general jurisdiction.
For these reasons, I am satisfied that in determining an application under the GIPA Act, the Tribunal is not determining existing rights between the applicant and the respondent. Rather, it is determining whether the decision of the administrator, over which it has jurisdiction by reason of the relevant provisions of the ADR Act and the GIPA Act, is the correct and preferable decision.
In this matter, the substantive issue primarily involves a determination about where, on balance, the competing public interests lay in regard to the information for which the respondent has decided to refuse access. This issue has not yet been determined, but in determining it the Tribunal will be required to make findings of fact relevant to the issues and to apply the relevant provisions of the GIPA Act, being the same provisions that the respondent was required to apply in making the reviewable decision. Even though s 38 of the CAT Act requires the Tribunal to exercise its powers in a judicial manner, with judicial fairness, detachment and independence, as noted by Kitto J, in Tasmanian Breweries, this is equally a feature of an exercise of administrative power.
I further note that the Tribunal is not empowered to self-enforce its decision. Rather, the reviewable decision, to the extent it is varied or set aside and a new decision is made, is taken to be the administrator's decision under s 66 of the ADR Act. This augurs against a finding that the Tribunal is exercising judicial power.
I do not consider it necessary to address the other matters that the parties raised in their submissions in determining the interlocutory application.