Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal

Catchwords

Ch 3Pt 3APts 2, 4, 5Sch 1 cl 1, 2, 4, 5Pts 3, 4 Supreme Court Act 1970 (NSW) ss 48, 69 Cases Cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510[1999] HCA 14 Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board (2007) 231 CLR 350[2007] HCA 23 Alexander v Minister for Home Affairs (2022) 96 ALJR 560[2022] HCA 19 Attorney General for New South Wales v Gatsby (2018) 99 NSWLR 1[2018] NSWCA 254 Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542[2008] HCA 2 Attorney-General (Cth) v Breckler (1999) 197 CLR 83[1999] HCA 28 Attorney-General (NSW) v Quin (1990) 170 CLR 1[1990] HCA 21 Attorney-General for State of South Australia v Raschke (2019) 133 SASR 215[2019] SASCFC 83 Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352[2015] HCA 7 Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333[2019] HCA 29 Bienstein v Attorney-General [2010] FCAFC 45 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245[1995] HCA 10 Breen v Williams (1996) 186 CLR 71

Judgment (34 paragraphs)

[1]

ative Tribunal Act 2013 (NSW) - Where the decision of an administrative body is given the effect of a decision of a court - Where exercise of judicial power if and when such an order is sought - No occasion to read down or sever s 78 - Burns v Corbett restriction applies Legislation Cited: Administrative Appeals Tribunal Act 1975 (Cth) Administrative Decisions Review Act 1997 (NSW), ss 7-9, 63, 64, 65, 66; Ch 3; Pts 2, 3 Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW), ss 13, 16, 17, 27(1)(a), 28, 32, 33, 34B(1), 34B(2), 38, 48, 52, 54, 72, 73, 75 ,77, 78, 80, 81, 83(1); Pt 3A; Sch 3 cl 3(1)(a), cl 9(1) Commonwealth Constitution, ss 71, 75, 76, 77 Freedom of Information Act 1989 (NSW), s 53 Government Information (Public Access) Act 2009 (NSW), ss 3, 4, 9,12-15, 41(1), 51, 51A, 54, 57, 58, 59(1)(d), 59(1)(e), 60(1)(b), 60(3), 64-71, 72, 80, 84(1), 100, 102, 106(1), 110-112, 127; Pts 2, 4, 5; Sch 1 cl 1, 2, 4, 5; Sch 4 cl 10 Interpretation Act 1987 (NSW), s 31 Judiciary Act 1903 (Cth), s 39 Ombudsman Act 1974 (NSW), ss 26(2)(d1), 26A Privacy and Personal Information Protection Act 1998 (NSW), ss 8-14, 16-18, 20(2)(a), 21, 29, 30, 31, 32, 38, 39, 49, 50, 52, 53, 55, 63, 66, 69; Pts 3, 4 Supreme Court Act 1970 (NSW) ss 48, 69 Cases Cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board (2007) 231 CLR 350; [2007] HCA 23 Alexander v Minister for Home Affairs (2022) 96 ALJR 560; [2022] HCA 19 Attorney General for New South Wales v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254 Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542; [2008] HCA 2 Attorney-General (Cth) v Breckler (1999) 197 CLR 83; [1999] HCA 28 Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 Attorney-General for State of South Australia v Raschke (2019) 133 SASR 215; [2019] SASCFC 83 Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; [2015] HCA 7 Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29 Bienstein v Attorney-General [2010] FCAFC 45 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; [1995] HCA 10 Breen v Williams (1996) 186 CLR 71; [1996] HCA 57 Burns v Corbett (2017) 96 NSWLR 247; [2017] NSWCA 3 Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24 Citta Hobart Pty Ltd v Cawthorn (2022) 96 ALJR 476; [2022] HCA 16 Cominos v Cominos (1972) 127 CLR 588, [1972] HCA 54 Federal Commissioner of Taxation v Munro (1926) 38 CLR 153; [1926] HCA 58 Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330; [1909] HCA 36 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24 Kaldas v Barbour (2017) 107 NSWLR 341; [2017] NSWCA 275 K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; [2009] HCA 4 KP v Narrandera Shire Council (GD) [2011] NSWADTAP 15 Luton v Lessels (2002) 210 CLR 333; [2002] HCA 13 New South Wales v Commonwealth (1915) 20 CLR 54; [1915] HCA 17 Patsalis v New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307 Precision Data Holdings Ltd v Wills (1991) 173 CLR 167; [1991] HCA 58 R v Davison (1954) 90 CLR 353, [1954] HCA 46 R v Quinn; Ex parte Consolidated Food Corporation (1977) 138 CLR 1; [1977] HCA 62 Re Colina; Ex parte Torney (1999) 200 CLR 386; [1999] HCA 57 Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140, [1987] HCA 29 Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72; [2001] HCA 49 Searle v McGregor (2022) 405 ALR 556; [2022] NSWCA 213 Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 Stack v Commissioner of Patents (1999) 161 ALR 531; [1999] FCA 148 Unions NSW v New South Wales (2023) 97 ALJR 150; [2023] HCA 4 Vice Chancellor Macquarie University v FM (No 2) (GD) [2004] NSWADTAP 37 White v Director of Military Prosecutions (2007) 231 CLR 570; [2007] HCA 29 Wojciechowska v Commissioner of Police [2022] NSWCATAD 70 Wojciechowska v Secretary, Department of Communities and Justice [2021] NSWCATAD 298 Texts Cited: James Stellios, Zines and Stellios's The High Court and the Constitution (7th edition, Federation Press, 2022) James Edelman, McGregor on Damages (21st edition, Sweet & Maxwell, 2021) Category: Principal judgment Parties: 2022/295461

[2]

Paulina Wojciechowska (Applicant) Secretary, Department of Communities and Justice (First Respondent) Civil and Administrative Tribunal (Second Respondent)

[3]

Paulina Wojciechowska (Plaintiff) Registrar, Civil and Administrative Tribunal (First Defendant) Commissioner of Police, NSW Police Force (Second Defendant) Secretary, Department of Communities and Justice (Third Defendant) Registrar, District Court of New South Wales (Fourth Defendant) State of New South Wales (Fifth Defendant) Representation: Advocates:

[4]

B Lim and H Ryan (for the first respondent in 2022/295641, and the third and fifth defendants in 2023/53137)

[5]

Solicitors: Crown Solicitor's Office (Respondents and defendants) File Number(s): 2022/295461 2023/53137 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Civil Citation: EFB v Commissioner of Police [2022] NSWCATAD 99; EFB v Commissioner of Police, NSW Police Force [2022] NSWCATAD 322; Wojciechowska v Commissioner of Police [2022] NSWCATAD 70; Wojciechowska v Secretary, Department of Communities and Justice [2022] NSWCATAP 226 Date of Decision: 22 March 2022; 30 September 2022; 2 March 2022; 12 July 2022 Before: D Dinnen, Senior Member; M Griffin, Senior Member; M Riordan, Senior Member; S Westgarth, Deputy President and the Hon D A Cowdroy AO QC, Principal Member File Number(s): 2019/00382033; 2022/00194626; 2021/00333475; 2021/00322248; 2022/00123205

[6]

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

[7]

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant commenced various proceedings in the New South Wales Civil and Administrative Tribunal seeking a review of decisions made on behalf of: (1) the Commissioner of the NSW Police Force and the Secretary of the Department of Communities and Justice under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act); and (2) the Commissioner relating to alleged breaches of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act). Three of the Tribunal proceedings concerned applications to review decisions under s 80 of the GIPA Act involving access to information held by public sector agencies, and in two other Tribunal proceedings the applicant sought damages from the Commissioner pursuant to s 55(2)(a) of the PPIP Act. At all material times the applicant has resided interstate and her claims were against persons who were emanations of the State. It was not in dispute that her claims were of a kind potentially falling within s 75(iv) of the Constitution. The applicant argued that the Tribunal did not have jurisdiction to determine any of the proceedings in question because to do so would infringe the limitation recognised in Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15. The main issues before the Court were: (i) whether the Burns v Corbett restriction applies in relation to the exercise of non-judicial power; (ii) whether the Tribunal relevantly exercises judicial power under the GIPA Act; (iii) whether the Tribunal relevantly exercises judicial power under the PPIP Act. The Court (per Kirk JA, Mitchelmore JA and Griffiths AJA agreeing) held the restriction does not apply to non-judicial power, dismissed the challenge as regards the GIPA Act, but upheld the challenge as regards claims for damages under s 55(2)(a) of the PPIP Act: As to the nature of the restriction 1. It is not the case that Burns v Corbett prevents State tribunals from exercising any power, including power of a non-judicial kind: at [40]. The Burns v Corbett restriction involves three core issues: (1) Is the proceeding of a kind potentially falling within ss 75-76 of the Commonwealth Constitution (eg because it is between residents of different States)? (2) If so, would resolution of the claim or dispute involve exercise of the judicial power of the Commonwealth? (3) If so, is the decision-maker a court in the relevant sense? Only if the first two questions are answered "yes", and the third question is answered "no", does the Burns v Corbett restriction apply: at [42]-[43]. Here, only the second question was in issue. 2. In considering whether a power should be characterised as judicial power it is relevant to consider the nature of the power being exercised, the manner of its exercise, and the effects of its exercise: at [47]. As to the GIPA Act 3. As regards the nature of the Tribunal's decision-making functions: the functions exercised by the Tribunal with respect to the reviewable decisions at issue are aspects of governmental administration; they involve applying criteria which to a significant extent are bureaucratic or evaluative; to the extent that the criteria involve consideration of legal issues that is a common feature of administrative schemes; even then, to a large extent consideration of the legal issues is not determinative of whether or not access is granted; and the rights involved are not property rights, nor pre-existing legal rights existing independently of the statutory scheme. These features, taken together, point strongly towards characterising the decision-making functions as involving the exercise of non-judicial power: at [87]. Federal Commissioner of Taxation v Munro (1926) 38 CLR 153; [1926] HCA 58; Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140 at 148, [1987] HCA 29; Precision Data Holdings Ltd v Wills (1991) 173 CLR 167; Luton v Lessels (2002) 210 CLR 333; [2002] HCA 13; Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542; [2008] HCA 2; [1991] HCA 58; Bienstein v Attorney-General [2010] FCAFC 45; Attorney General for New South Wales v FJG [2023] NSWCA 34, considered. 4. As regards the manner of exercise of its functions, the Tribunal bears features characteristic of administrative tribunals in Australia, but also mimics features of the judicial process in some respects. The fact that the decision-makers in the Tribunal by and large need not be lawyers militates somewhat in favour of characterising the Tribunal as exercising administrative power: at [90]-[96]. 5. As regards the effect of the exercise of the powers, the Tribunal is making a decision standing in the shoes of the administrator, where the decision is treated as a decision of the administrator, and where the burden of the decision relevantly falls on the administrator. That outcome weighs significantly in favour of characterising the function as involving executive, not judicial, power: at [98]. Such powers as the Tribunal has to deal with contempt or civil penalty applications are dealt with by distinct processes which do not affect the characterisation of applications determined by the Tribunal under the GIPA Act: [102]-[103]. 6. None of the impugned functions of the Tribunal in reviewing decisions under the GIPA Act involve exercise of judicial power. They may validly be exercised by the Tribunal in proceedings which, otherwise, would fall within federal jurisdiction: at [105]. As to the PPIP Act 7. As regards the nature of the Tribunal's decision-making functions under this Act, there are many features pointing to a non-judicial characterisation of the powers: the context of the scheme is governmental administration; the criteria involved are rather evaluative and administrative in nature; enforcement of the types of norms in the PPIP Act are not characteristically or historically exercised in courts; the rights at issue are not independent, pre-existing rights, and they are given effect in the manner and to the extent set out in the statutory scheme; the Tribunal's remedies, other than the power to order compensatory "damages" in s 55(2)(a), are of a kind which can be exercised by an administrative decision-maker. However, the power granted by s 55(2)(a) is of a kind characteristically exercised by courts. It is not necessary to determine if this factor would suffice of itself to conclude that the power could not be exercised by the Tribunal in the proceedings at hand: at [134]. Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; [1995] HCA 10, considered. 8. As regards the manner of exercise of its functions, much the same points arise as with respect to the GIPA Act: at [135]. 9. As regards the effect of the exercise of the powers, the Tribunal is not merely standing in the shoes of the administrative decision-maker when exercising the powers under s 55(2). It is making orders directed to the agency, rather than in lieu of the agency's own decision: at [136]. An order for damages made pursuant to s 55(2)(a) of the PPIP Act is to be certified by a registrar under s 78(1) of the Civil and Administrative Tribunal Act 2013 (NSW) and, if then registered with a court, is enforceable as a judgment of that court. The respondents' argument that s 78(1) does not apply to s 55(2)(a) orders should not be accepted. There is no occasion to read down or sever s 78. The provision cannot be read down only in some matters and not others. And to sever it only in some matters would be to alter the operation of the legislative scheme: at [138]-[139]. 10. A decision of an administrative body is thus given the effect of a decision of a court. The Tribunal would therefore be exercising judicial power if and when an order for damages under s 55(2)(a) of the PPIP Act is sought: at [140]-[142]. Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR; [1995] HCA 10, applied.

[8]

Judgment

MITCHELMORE JA: I agree with Kirk JA.
KIRK JA: In 2018 officers of the New South Wales Police Force attended a property belonging to the applicant, Ms Paulina Wojciechowska. Her dissatisfaction with the conduct of the Police, both during and after the visit to her property, has led to a large number of disputes in the New South Wales Civil and Administrative Tribunal, amongst other bodies.
In various of the Tribunal proceedings Ms Wojciechowska has sought review of decisions made on behalf of: 1. the Commissioner of the NSW Police Force and the Secretary of the Department of Communities and Justice under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act); and 2. the Commissioner relating to alleged breaches of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act).
Since November 2018 - prior to commencement of the various Tribunal proceedings - the applicant has been continuously resident in Tasmania. It is not in dispute that the relevant respondents to the Tribunal proceedings are emanations of the State of New South Wales for the purposes of s 75(iii) of the Commonwealth Constitution. The question thus arises whether or not the Tribunal has jurisdiction to determine the various issues before it in light of the principle recognised by the High Court in Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15. That question turns on whether or not determination of the issues would involve the Tribunal exercising the judicial power of the Commonwealth, which it cannot do.
For the reasons which follow, the Tribunal proceedings in question did not and would not involve an exercise of the judicial power of the Commonwealth with respect to the impugned functions under the GIPA Act, and there is no prohibition on the Tribunal exercising administrative power in such disputes. However, determination of an application for damages under s 55(2)(a) of the PPIP Act - as sought by the applicant in two proceedings - would involve the Tribunal exercising judicial power of the Commonwealth. The applicant is entitled to declaratory relief in that regard.
This judgment addresses the following issues in turn: 1. The context of these applications; 2. The Burns v Corbett restriction; 3. Does the Tribunal relevantly exercise judicial power under the GIPA Act?; 4. Does the Tribunal relevantly exercise judicial power under the PPIP Act?; 5. Orders.

[9]

The context of these applications

The procedural pathway to this Court is complicated. There are two proceedings before the Court, both of which involve an exercise of original jurisdiction. These were usefully referred to by the respondents as the "Secretary Proceeding" (being proceeding 2022/295461) and the "State Proceeding" (being proceeding 2023/53137). The active respondents in this Court were the Secretary and the State of New South Wales (the respondents), jointly represented. The applicant represented herself. The respondents did not dispute the applicant's standing to seek the relief at issue in this Court.

[10]

The Secretary Proceeding

The respondents in this case before this Court are the Secretary and the Tribunal. The case relates to one proceeding in the Tribunal, which was commenced on 10 May 2021 by Ms Wojciechowska (at first instance file number 2021/129993, and in the Appeal Panel number 2021/322248). Her application to the Tribunal seeks review of a decision of the Secretary. The applicant had applied to the Secretary under the GIPA Act for access to footage from CCTV security cameras, as at various identified times and dates, in rooms used by the Tribunal itself. The application was refused on the basis that no such records were located because the footage had been automatically overridden after 28 days. The application to the Tribunal was for access to the footage, on the premise that it still existed.
Section 80 of the GIPA Act identifies 13 classes of "reviewable decisions". This Tribunal proceeding appeared to assert that there was a reviewable decision to refuse access to information in response to an access application (s 80(d)), and perhaps a reviewable decision that government information was not held by the agency (s 80(e)).
In September 2021, a few months after commencing the proceeding, the applicant raised a preliminary issue challenging the Tribunal's jurisdiction to determine her application, invoking Burns v Corbett. The applicant thus challenged the jurisdiction of the Tribunal in proceedings she had herself commenced. That she did so is not as contradictory as it may sound. Part 3A of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) was enacted in response to this Court's decision in Burns v Corbett, then amended after the High Court's decision, to deal with applications or appeals in the Tribunal that would fall within federal jurisdiction and lie outside the Tribunal's authority. An applicant in such a matter may apply to the Local Court or District Court for leave to make the application or appeal to the court in question rather than in the Tribunal: s 34B(1). The relevant court may only grant leave if satisfied that, amongst other things, the application or appeal was first made to the Tribunal and that its determination would involve an exercise of federal jurisdiction: s 34B(2). Thus the applicant was required formally to make an application to the Tribunal in the usual way even if she considered that the Tribunal would be unable to deal with the matter for Burns v Corbett reasons. That being said, she was not obliged to challenge jurisdiction in the Tribunal itself; she could have made her arguments in the District Court which could then have determined whether the proceedings were in federal jurisdiction.

[11]

The State Proceeding

In the State Proceeding the applicant challenges the Tribunal's jurisdiction in four proceedings before the Tribunal, as follows (addressing them in chronological order as filed). The applicant has also made a series of other applications to the Tribunal, including ones in which she has raised a Burns v Corbett objection to the Tribunal's jurisdiction, without success. It is not necessary to list those other matters.

[12]

Wojciechowska v Commissioner of Police (2019/382033)

In December 2019, following an unsuccessful application for internal review pursuant to s 53 of the PPIP Act, Ms Wojciechowska commenced proceedings in the Tribunal against the Commissioner seeking review of certain Police conduct pursuant to s 55 of the PPIP Act. She alleged that the Police had breached s 16 of the PPIP Act, which, put simply, requires public sector agencies that hold personal information to check the accuracy of that information prior to its use.
In late 2020 Ms Wojciechowska filed interlocutory applications seeking that the Tribunal decline to exercise jurisdiction in the proceedings as it involved the exercise of federal jurisdiction. In March 2021 the Tribunal dismissed the interlocutory applications, finding that in determining applications for review of conduct under s 55 of the PPIP Act it was exercising administrative, not judicial, power.
In March 2022 the Tribunal made certain procedural orders relating to the matter, which the applicant claims were made without jurisdiction.
In September 2021 Ms Wojciechowska commenced proceedings in tort against the State of NSW and the Commissioner in the District Court. In October 2021 she filed an amended statement of claim, by which she sought leave (inter alia) to make the application for review that was already the subject of the Tribunal proceeding in the District Court instead, pursuant to s 34B in Pt 3A of the CAT Act. In June 2022, at the direction of the District Court, Ms Wojciechowska filed a separate summons addressing only her application under s 34B.
The District Court proceeding has been listed as inactive pending the resolution of the proceedings in this Court. Similarly, in June 2022 the Tribunal vacated the final hearing of its own proceeding pending the determination of this proceeding.
Ms Wojciechowska's original application to the Tribunal did not identify what remedy she sought. However, in the amended statement of claim in the District Court she relevantly alleges that she "suffered loss or damage because of the conduct" of Police and claims "compensation" pursuant to s 55(2)(a) of the PPIP Act. Her proceeding in the Tribunal can be taken to involve a claim under that provision.

[13]

Wojciechowska v Commissioner of Police (2021/333475)

In November 2021 Ms Wojciechowska commenced proceedings against the Commissioner in the Tribunal seeking review of a decision made on behalf of the Commissioner in September 2021 relating to an access application under the GIPA Act.
In December 2021 Ms Wojciechowska proposed that the question of whether the Tribunal's power under s 100 of the GIPA Act is administrative or judicial in nature be referred to the Supreme Court under s 54 of the CAT Act. In March 2022 the Tribunal declined to make that referral, concluding that its determination of GIPA Act applications under s 100 of the GIPA Act relevantly involves the exercise of administrative, not judicial, power: Wojciechowska v Commissioner of Police [2022] NSWCATAD 70.
In April 2022 the Tribunal remitted the challenged access decision to the Commissioner for reconsideration, pursuant to s 65 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act). A further decision was made on behalf of the Commissioner later that month. Ms Wojciechowska then indicated that she would not be withdrawing the Tribunal proceedings. In June 2022 the Tribunal stayed the proceeding pending the resolution of this matter.
The original decision on behalf of the Commissioner, made in September 2021, was that 14 of the 16 requests made had already been decided in previous applications (which had been dealt with in the Tribunal) and on that basis the decision-maker refused to deal with it pursuant to s 60(1)(b) of the GIPA Act. The decision-maker considered that the information sought in the other two requests was already available to the applicant, applying s 59(1)(d) and (e) of the GIPA Act. The decision was reviewable as being "a decision to refuse to deal with an access application" (s 80(c) of the GIPA Act) and a "decision that information applied for is already available to the applicant" (s 80(f)).
The decision made by the Commissioner in April 2022 on remitter was not in evidence before this Court, but given Ms Wojciechowska's dissatisfaction with that decision it may be inferred that it was to much the same effect.

[14]

Wojciechowska v Secretary, Department of Communities and Justice (2022/123205)

In April 2022 Ms Wojciechowska commenced proceedings in the Tribunal against the Secretary seeking review of a decision made on behalf of the Secretary relating to an access application under the GIPA Act. The proceeding is ongoing, although it seems that it is on hold pending the determination of this matter. A number of determinations made on behalf of the Secretary are sought to be challenged, involving the following issues: 1. decisions that parts of the access application were invalid because of a failure to provide sufficient information, contrary to the requirements of s 41(1)(e) of the GIPA Act, where a decision that an application is not a valid access application is a reviewable decision pursuant to s 80(a); 2. decisions to refuse access to some information, being a reviewable decision pursuant to s 80(d); 3. decisions that some of the information sought was not held by the Department, being a reviewable decision pursuant to s 80(e); 4. the decision-maker also indicated that the decision may be reviewable insofar as it was a decision to provide information in a particular way, being a reviewable decision pursuant to s 80(i).

[15]

Wojciechowska v Commissioner of Police (2022/194626)

In June 2022 Ms Wojciechowska commenced proceedings in the Tribunal seeking review of the conduct of the Police pursuant to s 55 of the PPIP Act. She alleged breach of ss 8-14 and 16-18 of the PPIP Act, and sought (only) damages under s 55(2)(a) of that Act. Her application for review in the Tribunal was made following an application for internal review made by Ms Wojciechowska to the Commissioner. The decision-maker had concluded that the application for internal review was not duly made as it was insufficiently particularised, but invited Ms Wojciechowska to provide further information. That invitation was not taken up.
In September 2022 the Tribunal determined that it would take no action in the matter, for reasons which included that the application for internal review was not sufficiently particularised. The applicant did raise an argument that the Tribunal did not have jurisdiction but the Tribunal did not seek to resolve the point.

[16]

The State Proceeding in this Court

The State Proceeding was commenced in the Equity Division of the Supreme Court in July 2022. It was transferred to the Common Law Division. Following an application to this Court, Mitchelmore JA made orders on 14 February 2023 removing the Proceeding to this Court, then remitting the proceeding other than prayer 1 of the amended summons to the Common Law Division. Prayer 1 of the amended summons seeks a declaration that the Tribunal "has no jurisdiction to hear and validly determine" the four proceedings commenced by Ms Wojciechowska, identified above, on the basis that the proceedings involved an exercise of federal judicial power contrary to the Burns v Corbett principle.
The applicant sought leave during the hearing in this Court to add to prayer 1 so as to include, as a further basis for the declaration, that "the conferral of administrative power in respect of the matter listed in s 75(iv) of the [Constitution] is invalid". This addition was linked to an argument by the applicant that Burns v Corbett prevents the Tribunal even exercising administrative power when the proceedings involve a dispute between a State and a resident of another State. She also sought to add relief in the nature of prohibition, and to correct any errors in the names of respondents or defendants. She also seeks leave to dispense with what she describes as an "irregularity" arising from having commenced the original proceedings in the wrong form, and seeks an extension of time for filing her submissions and affidavits, in circumstances where she was a little late in complying with the ordered timetable. The respondents did not object to these amendments and procedural orders.
The applicant should be given leave to amend prayer 1 to refer to the administrative power point and to seek relief in the nature of prohibition. In circumstances where the respondents have taken no objection to the form in which the proceedings were commenced, or to the minor non-compliance with the timetable, no orders need be made in relation to those matters.

[17]

What is in dispute in this Court

The Tribunal proceedings in question involve applications to review the following types of reviewable decisions under the GIPA Act: that an application is not a valid access application (s 80(a) of the GIPA Act); refusing to deal with an application (s 80(c)); refusing access to information (s 80(d)); that some of the information sought was not held by the agency (s 80(e)); that information was already available to the applicant (s 80(f)); and to provide information in a particular way (s 80(i)). The Tribunal proceedings also involve applications alleging contravention of ss 8-14 and 16-18 of the PPIP Act, seeking the remedy of damages pursuant to s 55(2)(a) of that Act. The question for this Court is whether determination of these issues lies beyond the jurisdiction of the Tribunal in light of the principle in Burns v Corbett.

[18]

The Burns v Corbett restriction

Since soon after Federation it has been established that the federal Parliament "has no power to entrust the exercise of judicial power to any other hands" than the courts identified in s 71 of the Constitution: Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 355 per Griffith CJ; [1909] HCA 36. Thus it has long been recognised that federal administrative tribunals are not capable of exercising the judicial power of the Commonwealth: see eg New South Wales v Commonwealth (1915) 20 CLR 54; [1915] HCA 17. This principle was not generally understood to restrict State Parliaments from authorising State tribunals to exercise judicial power.
That understanding proved partially incorrect in light of the High Court's decision in Burns v Corbett in 2018. That decision established that "a State Parliament lacks legislative capacity to confer on 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 judicial power with respect to any matter of a description in s 75 or s 76 of the Constitution" (to quote the summary of the principle in Citta Hobart Pty Ltd v Cawthorn (2022) 96 ALJR 476; [2022] HCA 16 at [1]).
Most disputes that come before State administrative tribunals will not involve a matter potentially falling within ss 75 and 76 of the Constitution, that is to say, potentially falling within federal jurisdiction. Some will, however, most notably because some emanation of the Commonwealth is a party (s 75(iii)) or because the dispute is between residents of different States or between a State and a resident of another State (s 75(iv)).
In the five years since Burns v Corbett was determined, tribunals and courts have been working out the effects of that decision with respect to the issues that are capable of being determined by State tribunals. Parliaments have also responded, passing laws which facilitate courts determining issues that would ordinarily fall within the jurisdiction of an administrative tribunal but which are excluded as a consequence of that decision. This Court's decision in Searle v McGregor (2022) 405 ALR 556; [2022] NSWCA 213 concerned the operation of such a provision relating to proceedings in the Personal Injury Commission. As noted, there are similar provisions for proceedings in the Tribunal in Pt 3A of the CAT Act. The provisions in Pt 3A themselves require a determination of whether the application or appeal in question "would involve an exercise of federal jurisdiction": s 34B(2)(b).

[19]

Does the Tribunal relevantly exercise judicial power under the GIPA Act?

The salient characterisation issues here can be addressed by considering the nature of the decision-making functions involved, the nature of the decision-maker, and the effects and enforceability of the decisions. Before addressing those topics it is necessary to sketch out the legislative framework. The parties referred to the current versions of the legislation. I will do the same.

[20]

The GIPA Act in outline

The object of the GIPA Act is set out in s 3, and includes "giving members of the public an enforceable right to access government information", where access is to be restricted "only when there is an overriding public interest against disclosure". The term "government information" is defined as "information contained in a record held by an agency" (s 4(1)); "record" is defined in broad terms (see Sch 4 cl 10). Reflecting the fact that the Act is only addressing government information, the term "agency" is defined to mean a public service agency, a Minister or a staffer thereof, a public or local authority, a public office, a court, and certain persons or entities designated as agencies by regulations: s 4(1).
Part 2 Div 1 of the Act sets out various ways in which government information may be made available. The relevant pathway here is by way of an "access application", which is defined in s 4(1) as "an application for access to government information under Part 4 that is a valid application under that Part". Section 41, within Pt 4, provides that an application is not a valid access application unless certain formal requirements are met, including that "it must be accompanied by a fee of $30". That fee can be reduced or waived by the agency: ss 51A and 127.
Section 9(1) provides: 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 (Access applications) unless there is an overriding public interest against disclosure of the information.
The agency dealing with the application must make an initial decision as to its validity: s 51. The agency may be required to consult with third parties about providing access to the information sought if the information is of a particular kind and the third party may reasonably be expected to have concerns about its disclosure: s 54. Unless extended, an agency must decide an access application and notify the applicant of the decision within 20 working days of the receipt of the application: s 57.
Section 58 outlines the range of decisions which an agency may make: to provide access to the information; to decide that the agency does not hold the information; to decide that the information is already available to the applicant (see further s 59); to refuse to provide access because there is an overriding public interest against disclosure; to refuse to deal with the application on one of the grounds in s 60 (eg because the agency has previously decided an application by the applicant for the information concerned); or to refuse to confirm or deny that the information is held by the agency because there is an overriding public interest against doing so. Any such decision is reviewable in the manner explained below.

[21]

Administrative review and the ADR Act

The ADR Act creates two rights of review - internal review and Tribunal review - for a species of decision labelled an "administratively reviewable decision". That notion is spelt out in ss 7-9. Such a decision is one which is a decision of an "administrator" over which the Tribunal has been given "administrative review jurisdiction" by some enabling legislation, where the administrator is the person or body that made, or is taken to have made, the decision.
The relevant enabling legislation here is the GIPA Act, s 100 of which provides that a person aggrieved by a "reviewable decision" of an agency may apply to the Tribunal for administrative review under the ADR Act. As noted above, s 80 specifies what the "reviewable decisions" are for the purposes of that part of the Act. Both sections are found within Pt 5 of the GIPA Act, which is headed "Review of decisions".
Chapter 3 of the ADR Act is headed "Process for administrative reviews under this Act". Part 2 Div 2 in that chapter imposes a duty to give reasons on request in relation to an administratively reviewable decision. Part 2 Div 3 establishes a right to seek internal review of such decisions by another decision-maker within the agency. However, that division does not apply in relation to decisions under the GIPA Act (pursuant to s 102 of that Act) because Pt 5 Div 2 of the GIPA Act set outs its own provision for internal review of a reviewable decision. A decision on internal review under the GIPA Act is a new decision, as if the original decision had not been made: s 84(1). A person aggrieved by such a decision can seek a further review by the Information Commissioner under Pt 5 Div 3 of the GIPA Act, although the Commissioner relevantly has a power to make recommendations and cannot make a substitute decision.
If the person is still aggrieved by a reviewable decision they may then apply to the Tribunal for administrative review (they can do so whether or not they have sought review by the Information Commissioner). The nature of such reviews is addressed by Pt 3 of Ch 3 of the ADR Act, which is headed "Role of the Tribunal". The Tribunal is to determine the "correct and preferable decision" based on the material before it, including any relevant factual material and any applicable law: ADR Act, s 63(1). In doing so it may exercise all of the functions conferred or imposed by any relevant legislation on the administrator who made the decision under review: ibid, s 63(2). The Tribunal's powers are more limited in respect of decisions about Cabinet and Executive Council information, insofar as the question for determination is not what the correct and preferable decision was, but rather whether there were reasonable grounds for the agency's claim: GIPA Act, s 106(1).

[22]

The process employed in the Tribunal

Pursuant to s 13 of the CAT Act, the Tribunal is constituted of: the President, who must be a Supreme Court judge; Deputy Presidents, who each must be a lawyer or current or former judge; and Principal, Senior and General Members, who may be Australian lawyers but need not be if they have other qualifying characteristics. There is no requirement that the person constituting the Tribunal in determining a review of a GIPA Act access application be a lawyer.
The procedure of the Tribunal is outlined in the CAT Act. Except in the circumstances described in s 38(3), the Tribunal is not bound by the rules of evidence and may inquire into and inform itself in such manner as it thinks fit, subject to the rules of natural justice: s 38(2). It is required to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms: s 38(4). The Tribunal may only award costs if satisfied there are special circumstances warranting it: s 60.
Applications for review of administratively reviewable decisions, including those under the GIPA Act, are allocated to the Administrative and Equal Opportunity Division of the Tribunal: CAT Act, ss 16-17 and Sch 3 cl 3(1)(a). In proceedings in that Division a party is entitled to be legally represented without the leave of the Tribunal: Sch 3 cl 9(1).

[23]

Appeals and judicial review

An appeal with respect to the determination of a reviewable GIPA Act decision may be made to the Appeal Panel of the Tribunal as of right on any question of law, or with the leave of the Panel on any other grounds: CAT Act, ss 32 and 80-81. The Appeal Panel is to be constituted by one member who is an Australian lawyer or two or more members at least one of whom must be an Australian lawyer: CAT Act, s 27(1)(a). There is no requirement that all members of the Panel be lawyers.
A party to such an appeal may then "appeal" to the Supreme Court, with the Court's leave, "on a question of law … against any decision made by the Tribunal": CAT Act, s 83(1). As has been said of a similar Victorian provision, "the Supreme Court is asked to exercise original, not appellate, jurisdiction and to do so in proceedings which are in the nature of judicial review": Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72; [2001] HCA 49 at [15]. Decisions of the Tribunal or the Appeal Panel are also subject to judicial review pursuant to the general law and s 69 of the Supreme Court Act.

[24]

The nature of the decision-making functions exercised by the Tribunal

As summarised above at [34], the types of reviewable decisions at issue here are whether an access application is valid (s 80(a) of the GIPA Act); refusals to deal with an application (s 80(c)); refusals of access to information (s 80(d)); conclusions as to whether information sought was held by the agency (s 80(e)); conclusions as to whether information was already available to the applicant (s 80(f)); and decisions about the means by which access to information was to be provided (s 80(i)).
All of these are decisions about whether or not to allow access to information held by agencies or persons operating as part of the State. The GIPA Act involves the State regulating its own record-keeping. It is an aspect of governmental administration. It is not part of some broader regulatory scheme extending to the regulation of access to information held by non-governmental entities or persons. Subject to any overriding legal restriction, the holder of any information can decide whether to make it available to others, whether specifically to individuals who request access, or simply by publishing it to the world at large, for example by uploading it to the internet. The GIPA Act, in combination with the ADR Act and the CAT Act, establishes a formal and sophisticated regime for management of that task as regards information held by relevant governmental entities.
That regime is administered in the first instance by agency officers. The next stage of decision-making, internal review, is again undertaken by agency officers. Those officers apply the same criteria that are applied in turn by the Tribunal. The Tribunal undertakes merits review of the operative decision, its role being to determine the correct and preferable decision on the material before it. If the Tribunal was characterised as exercising judicial power when doing so then there would be a real prospect that the agency officers, too, would be doing so. That would be a counter-intuitive conclusion.
Practical issues of whether an application provides "such information as is reasonably necessary to enable the government information applied for to be identified" such that the application is valid (quoting s 41(1)(e)), whether or not information is in fact held by an agency, whether information was already available to the applicant, or the manner in which the information should be provided, are bureaucratic in nature. They are well removed from the central notion of judicial power, that is, the authoritative and binding determination of rights in a controversy between parties: Huddart, Parker & Co Pty Ltd at 357.

[25]

The nature and process of the decision-maker

In considering whether a function granted to an administrative decision-maker is judicial power, one of the relevant considerations militating against it being so characterised is the very fact that the function has been given to a non-judicial body, at least if it is to be exercised in a manner not involving judicial process. That is so because "some functions may, chameleon like, take their colour from their legislative surroundings or their recipient": R v Quinn at 18. Thus "functions may be classified as either judicial or administrative according to the way in which they are to be exercised": Precision Data at 189. This factor is significant but not definitive. Were it otherwise, then there would be no restriction on the powers that could be granted to non-judicial decision-makers, which is not the law of Australia. In any event, this factor is just as applicable to consideration of whether State tribunals would impermissibly be exercising the judicial power of the Commonwealth as it would be in considering the issue as regards federal administrative decision-makers: see similarly Attorney-General for State of South Australia v Raschke (2019) 133 SASR 215; [2019] SASCFC 83 at [71]-[73].
The Tribunal bears features which have become common to, and characteristic of, administrative tribunals in Australia since the introduction of the Administrative Appeals Tribunal Act 1975 (Cth). At first instance the Tribunal need not be constituted by lawyers, and on appeal the Appeal Panel is required to have one lawyer but not all members need be lawyers (see above at [66] and [69]). It relevantly is not bound by the rules of evidence, and it may inquire into and inform itself in such manner as it thinks fit (see above at [67]), which features "can be an indicator of an administrative rather than a judicial body, but it is not determinative": K-Generation at [82].
The Tribunal is required to act with as little formality as the circumstances of the case permit, and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (above at [67]). These features, too, militate in favour of characterising the exercise of power as more administrative than judicial in nature.
As for the powers of the Tribunal to punish contempt, it is convenient to address those below.

[26]

The outcome of the decision and the effect of Tribunal orders

The Tribunal may exercise all of the functions of the administrator who made the decision under review: ADR Act, s 63(1). The ways in which an access application may be decided were explained above at [53]. The possible outcomes of determining an access application under s 58 of the GIPA Act do not impose obligations on the applicant; any obligations imposed are on the agency, and do not involve payment of money (thus s 78 of the CAT Act, which is discussed further below with respect to the PPIP Act, is not relevant here). There may be disputes about processing fees and deposits, which can be reviewed in the Tribunal: GIPA Act, ss 64-71 and 80(j)-(l). No such issues are raised in this case. In any event, such fees only arise insofar as an applicant makes and persists with an access application.
Under s 63(3) of the ADR Act the Tribunal may affirm an administratively reviewable decision, vary it, set it aside and make a substitute decision, or set it aside and remit it for reconsideration by the administrator. If the Tribunal varies or substitutes a decision then the decision of the Tribunal "is taken … to be the decision of the administrator" and to have had effect as such on and from the date of the administrator's actual decision (unless the Tribunal otherwise orders): ADR Act, s 66(2). Thus - reflecting the merits review nature of the process - the Tribunal is making a decision standing in the shoes of the administrator, where the decision is treated as a decision of the administrator, and where the burden of the decision relevantly falls on the administrator. That outcome weighs significantly in favour of characterising the function as involving executive, not judicial, power.
The applicant submitted that the Tribunal has the "ability to injunct a person under the GIPA Act", referring to s 110. That provision authorises the Tribunal to order that a person is not permitted to make an access application without first obtaining the approval of the Tribunal if that person (by themselves or in concert with others) has made at least three access applications in the previous two years "that lack merit", as defined. That power simply enables the Tribunal to restrict future invocation of the statutory rights under the Act. The legislation could have done that in a more direct way. That it interposes some evaluative process does not render the power judicial.

[27]

Conclusion with respect to functions under the GIPA Act

The nature of the relevant decision-making functions at issue here point strongly towards characterising the decision-making functions as involving the exercise of non-judicial power. The process employed by the Tribunal tends to point the same way, if not strongly so. The outcome of the Tribunal process is, at most, a decision varying or substituting the decision of the administrator, which decision is treated as a decision of the administrator, and where the burden of the decision relevantly falls on the administrator. Those characteristics also point strongly towards a non-judicial characterisation.
Taking these matters together, there are no matters requiring that the powers at issue be characterised as judicial and significant factors pointing the other way. In the result, none of the impugned functions of the Tribunal in reviewing decisions under the GIPA Act involve exercise of judicial power. They may validly be exercised by the Tribunal in proceedings which, otherwise, would fall within federal jurisdiction.

[28]

Does the Tribunal relevantly exercise judicial power under the PPIP Act?

As explained above at [17]-[22] and [29], the applicant has brought two proceedings in the Tribunal invoking the PPIP Act (along with a related proceeding in the District Court). In one she alleges contravention of s 16 and seeks monetary compensation under s 55(2)(a) of that Act, and in the other she alleges contraventions of ss 8-14 and 16-18 and again seeks damages under s 55(2)(a). The issue is whether or not consideration of those alleged contraventions, and the possible award of a monetary remedy under s 55(2)(a), would involve the exercise of judicial power. Again, it is appropriate to outline the legislative framework, before turning to address the nature of the decision-making functions involved, the nature of the decision-maker, and the effects and enforceability of the decisions.

[29]

Legislative framework

The object of the PPIP Act as indicated by its long title is, amongst other things, "to provide for the protection of personal information, and for the protection of the privacy of individuals generally". In fact, the effects of the Act are more limited than this purpose may suggest; in particular, the Act is directed to regulating the conduct of State government agencies, not the community generally.
Personal information is defined in s 4 as "information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion". That section goes on to provide examples of what does and does not fall within that definition.
Part 2 Div 1 of the Act sets out a number of "information protection principles". These principles regulate the handling of personal information by public sector agencies, they do not regulate the world at large - the principles are expressed as applying to such agencies, and the point is confirmed by s 20(1). The term "public sector agency" is defined in unsurprising terms in s 3(1), and relevantly includes the NSW Police Force. The principles are subject to various exemptions set out in Pt 2 Div 3. The information protection principles relate to the treatment of personal information, including its collection, retention, access, alteration, confirmation, use and disclosure. For example, s 16 - which the applicant invoked in both of the relevant Tribunal proceedings - provides as follows: A public sector agency that holds personal information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading.
Section 21 is of some importance: Agencies to comply with principles (1) A public sector agency must not do any thing, or engage in any practice, that contravenes an information protection principle applying to the agency. (2) The contravention by a public sector agency of an information protection principle that applies to the agency is conduct to which Part 5 applies.
The application of the principles to public sector agencies may be modified by privacy codes of conduct: ss 20(2)(a) and 30. Part 3 Div 1 of the Act deals with those codes. They may be made by the Minister for the purpose of protecting the privacy of individuals: ss 29(1), 31. They may "regulate the collection, use and disclosure of, and the procedures for dealing with, personal information held by public sector agencies": s 29(2). An agency must comply with any such code which applies to it, and a contravention is conduct to which Pt 5 applies: s 32.

[30]

The nature of the decision-making functions exercised by the Tribunal

Just as for the GIPA Act, it is significant that the PPIP Act only regulates public sector agencies. Similarly to the GIPA Act, it addresses aspects of governmental record-keeping, being the collection, retention and handling of personal information. The context, thus, is administrative.
The criteria set out in the information protection principles are, to a significant extent, rather amorphous, evaluative and directed to the way in which administrative processes are undertaken. The point is sufficiently made by reference to s 16 (quoted in full above at [109]), which prohibits the use of personal information without taking reasonable steps to ensure, in light of the purpose of the use, that the information is "relevant, accurate, up to date, complete and not misleading". The character of the criteria points toward the power being characterised as administrative.
The legal norms established by the Act are ones related to protection of privacy in the way public sector agencies deal with personal information. Those are not norms characteristically or historically exercised in courts.
Tied to that point, the rights created are not independent, pre-existing rights. Like those in the GIPA Act, they are given effect in the manner and to the extent set out in the statutory scheme. A person aggrieved by the conduct of a public sector agency may, after a review, obtain a decision from the agency of the kind set out in s 53(7). If they are not satisfied with the findings of the review or the agency decision then, under s 55, they may go to the Tribunal. There is no suggestion in the PPIP Act that these rights may directly be enforced in the courts. Further, s 69(1) of the Act provides that "[n]othing in Part 2 or 3 gives rise to, or can be taken into account, in any civil cause of action", and specifically does not "create in any person any legal rights not in existence before the enactment of this Act", nor "affects the validity, or provides grounds for review, of any judicial or administrative act or omission". Section 69(2) provides that subsection (1) "is subject to sections 21 and 32", which refer to Pt 5 of the PPIP Act, which creates the statutory review rights.
It is not necessary to consider here how s 69(1) may affect or relate to administrative law actions relating to acts or failures to act in the way required by the PPIP Act: cf Patsalis v New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307; Kaldas v Barbour (2017) 107 NSWLR 341; [2017] NSWCA 275. What is pertinent here is that s 69 serves to confirm that such rights to relief as are created by the Act are to be pursued by the means provided in the Act. There could be no tortious claim for breach of statutory duty. To the extent that "damages" may be claimed, that is done through seeking an order from the Tribunal under s 55(2)(a).

[31]

The nature and process of the decision-maker

Much the same points arise here as were discussed at [89]-[96] above with respect to the GIPA Act. Those points do not point significantly either way, save that it is relevant that the Tribunal need not be constituted by lawyers when determining such applications.

[32]

The outcome of the decision and the effect of Tribunal orders

The discussion at [97]-[103] is also relevant here. However, there are two important further features. First, as explained at [119]-[120], when exercising the powers in s 55(2) the Tribunal is not merely standing in the shoes of the administrative decision-maker. It is making orders directed to the agency, rather than in lieu of the agency's own decision. That difference does not suggest of itself that the powers are judicial, but it removes a consideration militating in favour of them being characterised as administrative.
The second difference is more significant and arises as regards s 55(2)(a) in particular. An order made under that provision is for payment of money. Under s 78(1) of the CAT Act, such an order "is to be certified by a registrar" (of the Tribunal - s 4(1)). If that certificate is "filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount" then the certificate "operates as such a judgment": s 78(3). It would be enforceable in the same way as a judgment of the relevant court.
The respondents argued that this provision did not apply to an order under s 55(2)(a). Whilst they acknowledged it was capable of applying according to its terms, they suggested that the power was of a kind with the "act of grace payment" provision in s 53(7)(c), and as such was "not the kind of order to which s 78 of the CAT Act is speaking". As discussed above at [132]-[133], a difficulty with this argument is that the s 55(2)(a) power has the characteristics of an ordinary, albeit discretionary, compensatory power for breach of a legal norm. There is no persuasive basis to suggest that it would be inconsistent with the PPIP Act for the s 78 mechanism to apply to such an order. One would expect a government agency readily to comply with a Tribunal order to pay compensation. However, not every agency will act promptly, and complainants may in some cases usefully avail themselves of the registration mechanism.
As noted above, there is no general constitutional restriction on the State authorising the Tribunal to exercise judicial power. If there were, then pursuant to s 31 of the Interpretation Act 1987 (NSW) it is possible the legislation might be read in such a way that s 78 did not apply to an order under s 55(2)(a). However, the constitutional limitation here is only that the State "lacks legislative capacity" to confer judicial power on the Tribunal with respect to matters in federal jurisdiction: Citta at [1]. The majority of claims under s 55(2) would not be affected by that limitation. There is no occasion to read down or sever s 78 generally, and counsel for the respondents made clear that the submission about the inapplicability of s 78 was "not a severance or a reading down argument". The provision cannot be read down only in some matters and not others. And to sever it only in some matters would be to alter the operation of the legislative scheme. Section 31 of the Interpretation Act operates such that the grant of jurisdiction to the Tribunal does not operate in matters in federal jurisdiction: see Burns v Corbett at [64]; Citta at [1].

[33]

Conclusion and orders

The Tribunal was and is not prevented from determining the applicant's various applications insofar as they related (only) to her claims under the GIPA Act. None of the issues raised by her under that Act would involve the exercise of judicial power.
However, the two proceedings in which she expressly or impliedly made a claim for damages under s 55(2)(a) of the PPIP Act would involve an exercise of judicial power. Those claims fall within matters in federal jurisdiction and cannot be determined by the Tribunal in light of Burns v Corbett. The whole proceedings would, however, be capable of resolution by the District Court pursuant to Pt 3A of the CAT Act.
The two Tribunal proceedings in question are those discussed at [17]-[22] and [29]-[30] above. The former proceeding has been put on hold pending this Court's decision. The latter proceeding has concluded on grounds not related to jurisdiction or to the merits of the applicant's claim. Even so, the Tribunal was not authorised to exercise jurisdiction in the proceeding, as the applicant had asserted in the Tribunal, and she is entitled to relief indicating as much.
The applicant sought relief in the nature of prohibition. However, there is no reason to doubt that the Tribunal and the respondents will proceed in accordance with the determination of this Court. Declaratory relief will suffice. The two Tribunal proceedings in question were raised in the context of the State Proceeding in this Court, so the declaratory relief should be granted in that case. The Secretary Proceeding only raised an issue relating to the GIPA Act. That case therefore should be dismissed.
As regards costs, each side has had some success. My provisional view is that the simplest and most appropriate course is that there be no order as to costs in either proceeding in this Court. An alternative approach would be to order costs in favour of the applicant in whole or part in the State Proceeding (in which she has had partial success), and costs in favour of the respondents in the Secretary Proceeding (in which the respondents have succeeded). Such orders would tend to favour the respondents, given that they would be able to claim costs relating to their legal representation whereas the applicant (being self-represented) would not. However, that approach may involve undue transaction costs relating to assessment in either proceedings, and also seems unduly onerous on the applicant in all the circumstances. In any event, the parties sought to be heard separately on costs. The appropriate way to proceed is to propose that an order be made in each proceeding that there be no order as to costs, subject to further consideration if either side seeks alternative orders as to costs. Any such application may be pursued pursuant to the timetable set out in this Court's orders.

[34]

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: 17 August 2023

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