State of New South Wales v Wojciechowska & Ors [2025] HCATrans 3 (5 February 2025)

Last Updated: 6 February 2025

[2025] HCATrans 003

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S39 of 2024

B e t w e e n -

STATE OF NEW SOUTH WALES

Appellant

and

PAULINA WOJCIECHOWSKA

First Respondent

REGISTRAR OF NSW CIVIL AND ADMINISTRATIVE TRIBUNAL

Second Respondent

COMMISSIONER OF POLICE NSW POLICE FORCE

Third Respondent

SECRETARY OF NSW DEPARTMENT OF COMMUNITIES AND JUSTICE

Fourth Respondent

REGISTRAR OF DISTRICT COURT OF NEW SOUTH WALES

Fifth Respondent

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 5 FEBRUARY 2025, AT 10.01 AM

Copyright in the High Court of Australia

____________________

MR B.K. LIM: May it please the Court, I appear with my learned friend MS H.D. RYAN for the appellant. (instructed by Crown Solicitor for NSW)

MS P. WOJCIECHOWSKA appears in person.

MR S.J. FREE, SC: May it please the Court, I appear with MS Z.C. HEGER, SC. We appear as amici curiae pursuant to the Court’s orders. (instructed by Crown Solicitor for NSW)

MR S.P. DONAGHUE, KC, Solicitor‑General of the Commonwealth of Australia: If the Court pleases, I appear with MS J.D. WATSON and MS R.S. AMAMOO on behalf of the Attorney‑General of the Commonwealth of Australia, intervening. (instructed by Australian Government Solicitor)

MR M.J. WAIT, SC, Solicitor‑General for the State of South Australia: If the Court pleases, I appear with MR J.F. METZER on behalf of the Attorney‑General for the State of South Australia, intervening. (instructed by Crown Solicitor’s Office (SA))

MR N. CHRISTRUP, SC, Solicitor‑General for the Northern Territory: If the Court pleases, I appear with MR L.S. SPARGO‑PEATTIE on behalf of the Attorney‑General for the Northern Territory, intervening. (instructed by Solicitor for the Northern Territory)

MR G.J.D. DEL VILLAR, KC, Solicitor‑General of the State of Queensland: May it please the Court, I appear with MS F.J. NAGORCKA and MR K.J.E. BLORE on
behalf of the Attorney‑General of the State of Queensland, intervening. (instructed by Crown Law (Qld))

MR C.S. BYDDER, SC, Solicitor‑General for the State of Western Australia: May it please the Court, I appear with MR J.M. CARROLL on behalf of the Attorney‑General for the State of Western Australia, intervening. (instructed by State Solicitor’s Office (WA))

MR A.D. POUND, SC, Solicitor‑General for the State of Victoria: May it please the Court, I appear with MS M.G. NARAYAN on behalf of the Attorney‑General for the State of Victoria, intervening. (instructed by Victorian Government Solicitor)

GAGELER CJ: I note that there are submitting appearances for the second to fifth respondents. Now, the Court has been provided with an agreed allocation of time and order of address. We proceed with your submissions, Mr Lim.

MR LIM: May it please the Court. The characterisation as either administrative or judicial of the Tribunal’s function to conduct an administrative review of public sector agency conduct in alleged contravention of an information protection principle depends, in our submission, on broadly two contestable aspects of that function.

The first is a consideration of the nature of any rights that the Tribunal is concerned with in the performance of its function. The second is a consideration of the nature of the Tribunal’s decision, and in particular whether it is binding and enforceable. That involves an issue about whether section 78 of the Tribunal’s statute applies, but also an issue whether the decision is relevantly binding even if that provision does not apply.

The two indicia that I have identified – the nature of the rights and enforceability – are not entirely independent in this case. If I persuade your Honours that the Tribunal does not determine existing legal rights then, in my submission, that is a powerful reason why the enforcement provision in section 78 of the Tribunal’s Act would not apply, and I accept that the converse is probably also true.

One way or the other, the case could end there on the resolution of those two issues, but there is a conceivable scenario where I could win on the nature of the rights but lose on the question of whether the Tribunal’s monetary order is binding and enforceable. In that scenario, we have two further and alternative lines of defence. First, we say the registrability under section 78 of the monetary order is not alone sufficient to characterise the Tribunal’s function as judicial. What would be missing in that scenario, which was present in cases like Brandy, is some determination of a legal right underpinning the enforceable order.

There is then a fallback alternative position, which is that even if the enforceability of the monetary order is seen to impart to the anterior function a judicial character, then the absence of the determination of any legal right means there is no matter in the Chapter III sense. On that hypothesis, there arises the larger question about the scope of the Burns v Corbett implication, on which issue is joined with the Commonwealth.

GAGELER CJ: But on that point, if you are embracing that argument, you are in agreement with the Commonwealth, are you, that a matter is required?

MR LIM: I say a matter is required; the Commonwealth says a matter is not necessary.

GAGELER CJ: I see.

MR LIM: So, they contend for a broader interpretation of what Burns v Corbett stands for or should be taken to stand for, and I propose a narrower carve‑out from State legislative power. But that issue, as I have sought to explain in that outline, arises, if at all, in a very narrow circumstance where, for some reason, there is no determination of a legal right but, nonetheless, the enforceability of the order means your Honours characterise that anterior function as judicial.

EDELMAN J: You do not seek to challenge the conclusion – the constitutional holding – in Burns v Corbett.

MR LIM: No, your Honour, I do not. I propose to structure my submissions in accordance with our outline of the four issues that arise. On the nature of the rights involved in the Tribunal’s review, would your Honours please take up the Privacy and Personal Information Protection Act 1998. It is tab 6 in volume 1 of the joint bundle. Your Honours may also be working from the pamphlet version, as I am. I propose to take your Honours systematically through the relevant provisions of this statute with a view to demonstrating three propositions.

First, the subject matter of the information protection principles indicates bureaucratic rather than legal norms. Secondly, the specified consequences for breach of an information protection principle are limited to the availability of review under Part 5 of the Act, and in particular do not include and expressly exclude consequences that may be suggestive of legal rights. Thirdly, review under Part 5 is administrative review because it is merits review. That point is that the orders the Tribunal may make in the review, including so‑called damages, are responsive to the Tribunal standing in the shoes of the original decision‑maker and deciding the correct and preferable decision to have been made in relation to the collection, handling or use of personal information.

The information protection principles themselves are in sections 8 to 19. When I say that the norms in those provisions are bureaucratic in character, I do not go so far as to say that they are standards that would be incapable of application by a court. There is one qualification to that which arises from the capacity of a ministerial order made under section 30 to modify those principles, with every possibility that such modification could legitimately involve standards incapable of judicial application, and I will return to that point when I come to those provisions about ministerial orders.

Before coming to the specific terms of sections 8 to 19, there are two general legislative indications in my favour. The first general indication in my favour is that the norms in these provisions are designated as principles and we submit that principles as distinct from rules, or requirements, inherently admit of exceptions, adaptations, discretionary judgments about whether and how they are to be applied. The legislative choice to call these norms principles, of course not determinative, but, in my submission, bespeaks Parliament’s recognition of their aim or amorphous and evaluative character.

The second general legislative indication in my favour is that the norms are directed in terms only to public sector agencies as defined in the Act. These norms do not seek to regulate the collection, handling and use of personal information by the private sector, and that distinguishes the principles from many other statutory norms which seek to regulate the conduct of government and subjects alike. That includes anti‑discrimination norms, for example, which feature in many of the decided cases about the character of State tribunal functions.

We accept, of course, it is not a determinative indication, but it is also not a neutral one. It is not neutral because it is one ingredient in construing this legislation as a scheme for public administration rather than a scheme of legal duty. Those general indications are then fleshed out more specifically in the principles themselves, and the matters I am going to direct attention to in these provisions can be described generally as involving the broad evaluative standards to which I have made reference.

EDELMAN J: So, are you assuming that there is a distinction or clear distinction between a bureaucratic norm and a legal norm, a scheme of public administration and a legal right, a standard that is concerned with principles and a judicial right? None of these concepts seem to be antithetical to each other.

MR LIM: I accept that there will be some overlap and certainly shades of grey, but what I am building up to in the second point is a submission that the consequences for which this statute provides for breach of what it calls a principle are only administrative consequences. It is a scheme where there are – breach does not sound in a legal relation, it sounds in a bureaucratic norm. At that level, the distinction, I do submit, is a clear one.

EDELMAN J: I can understand that point, but at the anterior point, we see principles all through the law when we are concerned with legal rights, and the adjudication of principles is part of the core function of administration of judicial rights.

MR LIM: I accept that, but I nonetheless say that the presence of those principles here, plus the specific designation of them as principles – which is unusual – supports the overall submission that the consequences are intended to be bureaucratic rather than legal. So, I accept I have to win on the points I am building up to, but I nonetheless deploy these features of the norms in support of that.

GLEESON J: Is not the use of language principles really directed to the power of modification?

MR LIM: It certainly intersects, yes, with the power of modification and the expectation in section 33 to which I am coming that agencies will develop more specific policies suitable to the particular agency’s own circumstances that implement these principles. But even the principles themselves, by governing the way in which administrative processes are undertaken and requiring for their application a detailed appreciation of the particular agency’s circumstances, in my submission, bespeak bureaucratic norms.

Some specific examples: sections 8 to 11 concern the collection of personal information, and your Honours see in paragraph (1)(a) of section 8 the principle that information be collected for a purpose that is directly related to an agency function or activity; in paragraph (b), collection to be reasonably necessary for the purpose for which the information was collection; and perhaps more strongly in section 10, requiring notification of certain matters – I withdraw that. The obligation to provide notification of certain matters requires taking such steps as are reasonable in the circumstances.

Now, to your Honour Justice Edelman’s question to me, of course these are not antithetical to judicial power, but they nonetheless raise a question about whether they are in this context judicial or bureaucratic.

EDELMAN J: Ronald Dworkin would have said they are at the absolute core of judicial power.

MR LIM: He might have. I accept that, your Honour. Section 11, the culmination of the principles on collection, requires:

such steps as are reasonable in the circumstances –

So, again, that evaluative standard:

to ensure that—

(a) the information collected is relevant to that purpose –

So, it is a second layer of evaluative judgment and granular attention to what the particular agency has as its purpose. And yet further broad standards, such as “not excessive”, “accurate”, “up to date and complete” and not intruding “to an unreasonable extent on the personal affairs of the individual”.

Similar points can be made about sections 12 to 15 concerning the holding of personal information. In particular, to take a good example for me, in my submission, paragraph (b) requires that information be:

disposed of securely –

GORDON J: This is 12(b)?

MR LIM: Section 12(b):

securely and in accordance with any requirements for the retention and disposal of personal information –

That is not a standard that can be readily applied without some knowledge of the administrative practices of the particular agency, the resources that are available to it in the particular context and the like. Section 12(c) similarly invokes a notion of:

security safeguards as are reasonable in the circumstances –

The use of personal information is governed by sections 16 and 17. Section 16 has two layers of evaluative judgment. First, the obligation is only to take:

such steps as are reasonable in the circumstances –

And, secondly, the steps are those to ensure that the information is relevant, accurate, et cetera:

having regard to the purpose for which the information is proposed to be used –

As I foreshadowed in answer to your Honour Justice Gleeson, the nature of these principles is illustrated further by section 33. Section 33 requires public sector agencies to:

prepare and implement a privacy management plan –

and a privacy management plan must provide for:

policies and practices to ensure compliance –

with the Act. In my submission, this is an additional indication that Parliament expected that compliance with the information protection principles would be achieved through bureaucratic means, namely, the development of a privacy management plan specifically adapted to the particular agency circumstances. So, the principles do not readily stand alone as comprehensible commands to the public sector. They require agency‑level adaptation and translation through more specific policies and practices.

In relation to the statutory contemplation that the principles are expected to be adapted to specific agency circumstances, we also, of course, rely on sections 29 to 31, which relate to privacy codes of practice. Section 30 provides that a code:

may modify the application . . . of any one or more . . . principles . . . to any public sector agency –

Subsection (2) spells out a code can specify different requirements or could exempt particular activities or conduct, or, indeed, in paragraph (c):

exempt a public sector agency, or class –

of agency from compliance with the principles. Section 29(7)(b) also makes clear that these codes can only relax the principles, they cannot impose more stringent requirements. Codes are made by ministerial order – that is section 31(5) – and, as an order, it would not be disallowable by Parliament.

The significance of the capacity for the Executive without immediate parliamentary supervision to modify the application of the information protection principles is that there is no guarantee that the content of the principles, as modified, will be capable of judicial application. There is a clear contemplation in the scheme that agencies will adopt policies and practices designed to ensure their compliance with the IPPs. The Minister, making a code, could modify the content of the IPPs so that compliance with an existing policy document suffices. The Minister could even modify the principles so that compliance with policies adopted from time to time would suffice. In that scenario, open on legislative scheme, the question whether an IPP had been contravened and would become squarely a question of applying departmental policies in force from time to time.

With those features of the subject matter of the norms in mind, can I turn to my next point: the nature of the obligations to which those norms give rise. The proposition I seek to make good here is that Parliament has made specific provision as to the consequences of non‑compliance with an IPP as modified by any code of practice, and those consequences are manifestly administrative in character. It is the case, of course, that Parliament can create duties, breaches of which do not engage a curial response. Parliament may chose to provide for accountability to be delivered in different ways, especially by bureaucratic means, sometimes by direct parliamentary oversight.

This Court’s recent decision in Attorney‑General (Tas) v Casimaty (2024) 98 ALJR 1139 at paragraphs [31] to [33], contains a helpful restatement of that point and reference to other authorities. I will pause to mention, that case is not in the joint bundle of authorities, but if your Honours would like hard copies, I can have that supplied over the morning break.

GAGELER CJ: There is no need for that.

MR LIM: Thank you, your Honour. If your Honours go to section 69 of the Act, the reference in the opening clause to:

Part 2 or 3 –

is a reference to the information protection principles in Part 2 and the codes of practice and management plans in Part 3. Section 69 provides that those principles and codes do not:

give rise to . . . any civil cause of action –

and it provides further that they cannot:

be taken into account in, any civil cause of action –

The plenitude of that provision is spelled out in specific subparagraphs which make clear that the principles do not:

create in any person any legal rights –

nor do they affect the validity or provide review grounds in respect of any:

act or omission.

That, in my submission, is the most comprehensive indication that the principles are not legally enforceable in any way whatsoever.

GLEESON J: Does that mean that Ms Wojciechowska could not go to the Supreme Court to seek a declaration as to the proper construction of a provision in Part 2 or 3 where she had a dispute with an agency about its meaning?

MR LIM: If all that was sought was a declaration, it is possible that the court would have power to give it, but would almost certainly decline to make it in the exercise of discretion. If a non‑declaratory order was sought, it would be beyond the jurisdiction of the Supreme Court to make it. Such an order would be denied by section 69.

What section 69 is doing is making the duties imposed on public sector agencies imperfect duties that have no correlative claim right on the part of the individuals whose personal information is collected, held and used by an agency. I cannot compel a New South Wales department to collect, use or handle my personal information in any particular way. It is not to say that the agency does not have duties in the principal sense that they must observe, but section 69 means I cannot enforce those duties.

Section 69 is obviously subordinated by subsection (2) to sections 21 and 32. The case against me relies heavily on that subordination to say that that is, in effect, a complete answer to the points I have been putting. But, to take section 21 as the exemplar – because section 32 is, materially, the same – the section is in two subsections which, we submit, must be read together. Subsection (1), it is true, creates a duty of non‑contravention but it does not create any correlative right. The correlative right is created by subsection (2) which, on our construction, provides expressly for the consequences – and the only consequences – of a contravention.

BEECH-JONES J: So, to pick up Justice Gleeson’s question, you can go to the Supreme Court and get an injunction to say, do not reveal my private information, contrary to the principle.

MR LIM: You cannot do that.

BEECH-JONES J: You cannot.

MR LIM: Cannot do that.

BEECH-JONES J: Even though 69 is made subject to 21(1).

MR LIM: That is so, because 21(1) must be read with its immediately succeeding subsection which specifies what is to be done about a contravention. So, the anticipated disclosure of personal information that one might seek to enjoin, the statute tells you has to be done – has to be addressed through Part 5 review.

EDELMAN J: Why would you not read 69(1) as being concerned, in effect, with private rights? In other words, consistently with your submission that it creates an imperfect duty with no correlative individual claim right, but not excluding the possibility that all of these duties are public duties and enforceable by anyone with standing, but they are not just enforceable by them in their own capacity for their own benefit.

MR LIM: In my submission, that narrower reading of section 69(1) gives insufficient weight to the words:

any civil cause of action –

particularly understood in light of paragraph (b) which is expressly directed to what might otherwise be public duties of the kind your Honour is raising with me.

EDELMAN J: Thank you.

STEWARD J: I take it that your case really is that section 69 is for the avoidance of doubt. It is to make something clear which you would say is otherwise clear from the way you read this Act.

MR LIM: I would be content with that, but it is not a necessary part of my argument.

STEWARD J: No, I understand. But when it talks about, in section 69:

any civil cause of action –

your point is that, for example, Part 5 review is not a civil cause of action, I take it.

MR LIM: Yes.

STEWARD J: Yes, I see.

MR LIM: My case is that Part 5 review is merits review.

STEWARD J: Yes.

MR LIM: I am building up to that.

BEECH‑JONES J: But it is also your case that “civil cause of action” includes judicial enforcement of any rights that might exist under statute.

MR LIM: Yes, coupled with the point that it is not creating rights.

BEECH‑JONES J: Yes.

MR LIM: There is an interrelationship between those two points.

BEECH‑JONES J: What about if the internal review people refused to accept your application? Could you not go to the Supreme Court and get an order compelling them?

MR LIM: Possibly. There are really two things. If the internal review people refused to accept the application, it would probably give rise to a right to go to the Tribunal by being dissatisfied with the outcome of the internal review, but it may also enliven an application to the court to enforce the right to a review.

BEECH‑JONES J: Yes.

MR LIM: Yes. So, I certainly embrace that, that the right that is created by this statute is a right to have a review performed in accordance with Part 5, but that is distinct from a right to have the agency collect, handle or use one’s personal information in any particular way.

STEWARD J: Well, section 55(1)(b) says you can seek review if you are not satisfied with:

the action taken by the public sector agency –

That must include refusing to ‑ ‑ ‑

MR LIM: Quite. So, one could go to the Tribunal. I would accept one could go to the court at that point. The court might identify discretionary reasons to send such a person back to the Tribunal, but I am not suggesting that the Act, in any way, excludes rights to enforce – or the ability to enforce the right to a review.

I still, of course, have to make good my next submission, that the review for which Part 5 provides is an administrative review, rather than a judicial proceeding. But before I get to that, the mere fact that the statute makes Part 5 review the exclusive consequence for breach is not a neutral factor in the characterisation of the functions under this scheme. It weighs in my favour. The exclusive nature of the review tends to indicate a legislative intention to distinguish between the creation of legal rights and duties, to which section 69 speaks, and the creation of a bureaucratic form of redress, namely review in the Civil and Administrative Tribunal.

That brings me to Part 5 of this Act and the nature of the review for which it provides. Section 53 creates the internal review undertaken by the agency itself. I just note that by virtue of section 52(4), a separate and more general scheme for internal reviews provided by the Administrative Decisions Review Act does not apply. So, I have not come to that legislation yet, but there is general provision in New South Wales for internal agency review that is displaced by this Act by section 53.

GORDON J: By section 52(4) giving rise to section 53.

MR LIM: Yes. Subsection (1) expresses an entitlement to the internal review. That is not an entitlement to any particular outcome from the review. That distinction is important because, at the point of alleged contravention of a principle by the agency, the individual does not have an entitlement to relief, which they might do if the principles created legally‑enforceable rights. The potential outcomes of an internal review are set out in subsection (7). They include – importantly, for my case – a power to pay:

monetary compensation to the applicant –

as an example of taking:

such remedial action as it thinks appropriate –

So, at this point in the process, the Act recognises that an agency, plainly performing a non‑judicial function, can review its own conduct and decide that monetary compensation should be paid as a form of remedial action.

STEWARD J: That does not have a cap on it?

MR LIM: It does not.

STEWARD J: Yes.

MR LIM: Section 55 then provides for review by the Tribunal. Dissatisfaction with the internal review is a precondition to applying to the Tribunal, but the Tribunal reviews the underlying conduct of the agency, not the internal review as such. Subsection (1) makes clear that the review by the Tribunal is to be what is called:

an administrative review under the Administrative Decisions Review Act –

Following the logic of the drafting of this section, I am going to ask your Honours to go now to that Administrative Decisions Review Act, but I will need to come back to section 55 afterwards. It is tab 4 of the joint bundle. The objects of this Act are spelled out in section 3. I draw attention to two of them in particular.

Paragraph (c), about fostering an atmosphere “as a means of enhancing the delivery of services and programs”, is indicative of the broader bureaucratic purposes of administrative review. Paragraph (d), referencing “compliance by administrators with legislation”, we submit, indicates in context a bureaucratic form of accountability. Section 6 contains an inclusive definition of “decision” which includes in paragraph (1)(g):

doing or refusing to do any other act or thing.

And section 7 defines “administratively reviewable decision”, making clear that it extends to:

conduct of an administrator –

Your Honours see a note to that provision referencing section 55 of the Privacy Act in particular. The note is not part of the Act. Now, there is some criticism made in the submissions of the amici and the Commonwealth Attorney‑General of our notion of merits review of conduct.

The submissions put against me seek to distinguish between a reviewing tribunal determining what should be done now in the fresh exercise of the agency’s power on the one hand and on the other hand deciding whether past conduct contravenes some standard and what, if any, remedial action should be taken. That is the distinction set up against me. But, in my submission, the application of a merits review regime to conduct is readily understandable because there is no stable or clear distinction between a decision and conduct.

Conduct by an administrator is but the implementation of an anterior or perhaps simultaneous decision to do or refrain from doing some act. The notion of merits review of conduct is therefore not unlike a situation where there may have been a decision in the narrow sense which has been acted on or implemented in some way before the time for a merits review tribunal intervenes. We note, of course, that in this scheme, as in many others, seeking merits review does not automatically lead to a stay of the underlying decision. So, the prospect that a reviewing tribunal is reviewing a decision that has been acted on or implemented is quite common.

Now, if my learned friends accept, as I submit they must, that there can be merits review of a decision even if it has been acted on, then, in my submission, there can be merits review of conduct because there is no satisfactory distinction between those two things. In both situations, the practical consequence of a tribunal deciding what is the correct and preferable decision may be that the agency has to alter its conduct. It may be that the agency has to take some steps to restore a person to the position they would have been in, had the correct and preferable decision been made at an earlier point in time.

STEWARD J: Is there a meaningful distinction between conduct and decisions?

MR LIM: No.

STEWARD J: Is conduct not just a series of decisions being acted upon?

MR LIM: Yes. Yes, I am seeking to respond to ‑ ‑ ‑

STEWARD J: I understand.

MR LIM: The distinction being put against me is that there is a distinction between decision and conduct. I accept there is not a good distinction.

BEECH‑JONES J: If you had a system of storing information and it was not very good and something just fell off the back of a truck, presumably, your complaint would be the information that leaked when it fell off the back of a truck, and that would probably be conduct, would it not? That sort of example where – and you would not get into a debate about whether – because there was no decision. No one consciously made the mistake, but there was an anterior determination about how it would be stored, but the whole review would not get bogged down as to whether it was conduct or decision, would they?

MR LIM: I accept that entirely, but I would not accept in that scenario that there is no anterior decision. The falling off the back of the truck would not be conduct either; that is just what happened because of the system that was adopted. Someone decided to adopt that system, and that may or may not have been reasonable in the circumstances of that agency, may or may not have been a contravention.

The point I am trying to make is that there is nothing antithetical to merits review that the subject of the merits review is conduct of an agency. There is nothing antithetical to a concept of merits review that the practical outworking of making the correct and preferable decision is that the agency then has to change course or take remedial action.

GAGELER CJ: This definition of “decision” is fairly standard, is it not, in merits review legislation?

MR LIM: Yes. Section 63(1) of the Administrative Decisions Review Act is an overarching description of the Tribunal’s function in a review under this Act. Adopting, again, Chief Justice, what is a fairly standard form of language:

the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it –

It is important to note that this provision is spelling out what the Tribunal must do in a review. This is a complete statement of what the review is.

GORDON J: By section 63(1)?

MR LIM: Yes.

GORDON J: That is, to decide what is the current and preferable view?

MR LIM: Yes, what is “the correct and preferable decision”.

GORDON J: Sorry, I meant to say “decision”.

MR LIM: One submission put against me, is that the powers conferred on the Tribunal under this Act – the Administrative Decisions Review Act – are in one stream of the Tribunal’s powers and that section 55 of the Privacy Act is an entirely additional stream of functions. That cannot be right, in my submission, because of section 63(1). Section 63(1) is properly understood as telling you, comprehensively, everything that the Tribunal is doing in a review. It is deciding what the correct and preferable decision is and in doing so it has available to it a range of powers – some under this Act, some under the Privacy Act – but nonetheless the task is a singular one; there are not two streams of function.

STEWARD J: Do I take it there is no equivalent language in the Civil and Administrative Tribunal Act that one finds in section 63?

MR LIM: I will have that checked. I think that is right. I think all the merits review functions ‑ ‑ ‑

STEWARD J: And that is because, I assume, that NCAT does more than just administrative review?

MR LIM: Quite.

STEWARD J: Yes.

MR LIM: So, NCAT has a range of different jurisdictions, they are specifically described in its constitutive statute, including a general jurisdiction, an enforcement jurisdiction, and the administrative review jurisdiction is a particular category of its jurisdiction which picks up these applications.

We place emphasis on that, because Parliament has selected, for the performance of this function, not just a tribunal, which we know can exercise both judicial and administrative power, it has selected the administrative review jurisdiction of that tribunal, and so it makes the chameleon doctrine point stronger for me than it would be if the Tribunal did not have those distinctive jurisdictions. Still in section 63, subsection (2) provides that:

the Tribunal may exercise all of the functions –

of the administrator, and I just want to point out a fine distinction in the selection of language by the parliamentary drafter here. The drafting picks up:

functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

In my submission, that is broad enough to encompass the specific functions available to the agency in an internal review under section 53 of the Privacy Act. To see that point, the language in subsection (2) can be contrasted – still in this Act – with section 53(5A). This is a provision in the general scheme for internal reviews which does not apply in the privacy context, but I am going to it to draw attention to the different drafting of the powers given to an internal reviewer. They are taken:

to have the right to exercise the same functions under any relevant legislation or other law that the administrator had in making the decision being reviewed.

That is a narrower concept focusing on powers available to the original decision‑maker when making the decision being reviewed.

GLEESON J: Subsection (2) is for the purpose of subsection (1).

MR LIM: Yes.

GLEESON J: You are not talking about exercising the functions in 53(7), are you, of the PPIP Act?

MR LIM: I am.

GLEESON J: But is 63(2) not directed to things like collection material that you might need in order to exercise, or to decide what is the correct and preferable decision, as opposed to deciding what might flow from that conclusion?

MR LIM: No. So, the review under section 63(1) is to decide what correctly and preferably ought to have been done with the collection, handling and use of personal information. In making that decision, the Tribunal can do anything that the administrator could have done.

GLEESON J: For the purpose of making that decision.

MR LIM: Well, for the purpose of deciding, yes, what the correct and preferable decision is.

BEECH‑JONES J: So, if 63(2) picks up 53(7) of the Privacy and Personal Information Protection Act, why do we have 55(2), or are you coming to that?

MR LIM: I will come to that – 55(2) is regulating powers that the Tribunal otherwise has as part of its general merits review function.

BEECH‑JONES J: So, it is limiting, in effect?

MR LIM: It is limiting, it places the cap on it, in damages; it carves it out from prisoners and their families and the like. To address your Honour Justice Gleeson’s question further, there is no sense in which a tribunal conducting an administrative review under this Act, whether in the privacy context or otherwise, is limited to some sort of declaration – that is an imprecise use of that word – not limited to declaring what the correct and preferable decision is. They can do whatever the original decision‑maker could do, and that extends, conceptually, to telling them what it should do.

GORDON J: Your short point is that, as I understand it, under 63(1), the Tribunal has to make:

the correct and preferable decision –

and that, by contrast with 53(5)(a), in the undertaking of that task, for that purpose, they:

may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

And that is a present position, not a past decision. In other words, it is unlike the position adopted under 53(5)(a).

MR LIM: That is so, and, in particular, the consequence of that is it will pick up the internal review functions of the agency.

GORDON J: I do not know about that.

MR LIM: That is the submission.

GORDON J: I think you might need to make that link for this reason, that, as you pointed out, what comes up is the subject of the internal review, not the internal review itself.

MR LIM: That is so, but that assists me, because both the internal reviewer and the Tribunal are looking at the same original decision – there are two different bodies now looking, sequentially, at the same decision. On the internal review, the PPIP Act has given the agency specific powers, including monetary compensation, and all section 63 does in this circumstance is to say the Tribunal, looking at the same decision that the internal reviewer was looking at, has the same powers that the agency had when looking at its own decision, including monetary compensation.

GORDON J: So, when you read “the administrator”, you include, there, the internal reviewer.

MR LIM: For this reason: “administrator” is defined in section 8 to mean “the agency” and the specific internal review for which section 53 of the PPIP Act provides is reviewed by the agency.

GORDON J: Thank you.

GAGELER CJ: Mr Lim, if you assume that the result of an internal review is the doing of something under section 53(7) that involves the providing of undertakings or the implementation of administrative measures, or even remedial action, what is the status of what is done under section 53(7) once the underlying decision is referred to the Tribunal? I say that because it seems like the assumption, at least in the drafting of the options available to the Tribunal under subsection (3) of section 63, is that all of that internal – what has happened, internally – is swept up, somehow in the topic – I am trying to use a neutral word – that is for decision by the Tribunal, so the Tribunal could, presumably, be setting aside the decision of the internal reviewer.

MR LIM: That seems to be, save for that the language of section 55(1), which identifies the review as one:

of the conduct that was the subject of the application under section 53.

What your Honour is putting to me is that the conduct the subject of the application under section 53 can transform into conduct in consequence of what is decided under section 53.

GAGELER CJ: I am just wondering how it would work, practically, otherwise.

MR LIM: Well, the precondition to invoking the Tribunal’s jurisdiction is dissatisfaction with what has happened in the internal review. So, one posits that the internal reviewer has done less than what the applicant wants – may have done nothing or, in your Honour’s scenario, it may have ordered an apology but no compensation – and the applicant wants more than what they have, and they go to the Tribunal. The status of what the agency itself has done as a consequence of its internal review is just that the agency has done it. The question for the Tribunal is: was what was originally done correct or preferable?

GORDON J: When you are talking about “original”, then, are you talking about the original decision, or are you talking about the outcome of the internal review?

MR LIM: The original decision.

BEECH-JONES J: Mr Lim, you may be coming to this. Section 55(2) of the Privacy Act does not have, as far as I can see it, a power to set aside the decision under review.

MR LIM: I am coming to that. It is picked up ‑ ‑ ‑

BEECH-JONES J: By 63(3)?

MR LIM: Section 63(3), because 55(2) is on reviewing the conduct. So, 55(2) is only engaged if the Tribunal is reviewing the conduct.

GORDON J: But is it not picked up also by 55(2)(g):

such ancillary orders as the Tribunal thinks appropriate.

Or is that not sufficiently broad enough?

STEWARD J: I would have thought it was 55(3).

MR LIM: Yes, I think I have layers of response which all enthusiastically say that the decision can be set aside. The first point is that from 55(1), referenced in 55(2), it is a review under the ADR Act, which confers a power to set aside. The “ancillary orders” would be broad enough to set aside a decision, because that may be necessary in order to provide the foundation for taking one of the other specified actions. And then, your Honour Justice Steward, subsection (3) confirming that the power to set aside from the ADR Act is available to the Tribunal.

GLEESON J: What is the relationship between subsections (2) and (3) of section 63 of the ADR Act?

MR LIM: This is, again, a fairly widely used form of drafting which is to confer on the Tribunal power to make the correct and preferable decision by: affirming, if what was done was correct and preferable; varying, if some different decision ought to have been made; and, perhaps not all that differently from varying, setting aside and making a different decision. So, they are the things that can be done to the decision and, in doing so, the Tribunal can exercise any functions of the original agency.

There are two more provisions in the ADR Act to mention. The first is section 64, which is a requirement on the Tribunal, with exceptions, to give effect to government policy. So, that is a weighty indicator against the determination of a review under this Part being characterised as judicial. Then, section 66 is an important provision on my case. Subsection (1) is about the date on which the Tribunal’s decision takes effect. I do not need to dwell on that. It is subsection (2) that it is important. Where a:

decision varies, or is made in substitution for –

the original decision, then:

the decision of the Tribunal is taken:

(a) to be the decision of the administrator –

There is a specific exception to that deeming provision, which is:

(other than for the purposes of an administrative review under this Act) –

So, one cannot have an endless loop of review under this Act. But there is no further carve‑out for that deeming provision. I will just foreshadow – this becomes important to my argument on whether the enforceability provisions apply.

GORDON J: The argument being put against you that the order is not one which varies or is made in substitution for?

MR LIM: That is so.

GORDON J: And you will deal with that at that point?

MR LIM: Yes.

STEWARD J: Why is this provision needed in New South Wales – subsection 66(2)(a)? You can take it on notice.

MR LIM: I will take that on notice. There may be a range of statutory consequences that attach to decisions of administrators, and it is important to drag Tribunal decisions into that. Against the framework of the ADR Act for administrative review, could I ask your Honours then to return to section 55 of the PPIP Act.

Subsection (2) sets out orders that the Tribunal may make on reviewing the conduct of a public sector agency. We submit that they are discretionary, including the power to award what are called “damages”. The Court of Appeal found, at paragraphs 122 and 123 of its judgment, that the actions authorised by section 55(2) are additional to and different from the powers conferred by the ADR Act.

The better construction, in my submission, is that section 55(2) is explicating specific ways in which the general functions of the Tribunal in an administrative review may be exercised. The reasons for that are, first, the process here is an administrative review, and only an administrative review. Section 55(2) is enlivened only on reviewing the conduct of the agency concerned, and so section 55(2) is not separate from the overarching function that is required by section 63(1) of the ADR Act, which is to decide the correct and preferable decision.

All of the powers in section 55(2) are directed to performing that function. Each of them is akin to an action specified in section 53(7) as available to the agency itself when it conducts the necessarily anterior internal review. And so, to complete the point I was seeking to make by reference to section 63(2) of the ADR Act, the power of the agency to pay monetary compensation as a response to a review of its conduct is conferred on the Tribunal by the ADR Act in any event. If that is right, then section 55(2) can be seen to regulate that power by placing the $40,000 cap on it and other limitations.

GAGELER CJ: So, you would take 55(2) of the Privacy and Personal Information Protection Act and effectively insert it in as subsection (4) of section 63 of the Administrative Decisions Review Act, I mean, structurally?

MR LIM: No. The reason the power of compensation comes to the Tribunal is not because I read it into section 63 for all administrative reviews, it is because what has been picked up includes 53(7) of the Privacy Act, being a function conferred on the administrator, albeit in its internal review phase, but nonetheless a power conferred on the administrator and therefore available to the Tribunal irrespective of section 55.

EDELMAN J: It is really a submission that section 63 of the ADR, or 63(2) of the ADR Act, is delimited or confined by section 55(2) of the PPIP Act, is it not?

MR LIM: Yes.

GORDON J: Is that right? I mean, there is no doubt under – another way of looking at it is to say that the powers under section 63(3) of the ADR Act are to be read with the limitations or a description of the powers that are in section 55.

MR LIM: I accept that as well.

GORDON J: Well, that is important because what it is telling you is that under – we know that under the PPIP Act 55(3):

Nothing . . . limits any other powers that the Tribunal has under –

the relevant Part, so one has to pick them up, as the Chief Justice suggested, and take them into account, but they have to be read with the limitations which themselves exist, I think, in (2)(a), otherwise you would have an unlimited ability to do other things.

MR LIM: The tack that I am seeking to meet in developing this submission is that section 55 of the PPIP Act is some separate stream of function and power for the Tribunal that does not take its colour from the administrative review. That is really a step in the Court of Appeal’s reasoning and in the submissions of the amici, and that is how ‑ ‑ ‑

BEECH‑JONES J: Mr Lim. I am sorry, please finish your submission. Sorry.

MR LIM: No, I am ‑ ‑ ‑

BEECH‑JONES J: Do you read the words “other powers” in 55(3) as saying power other than those in 55(2)? So, what we are saying is the other powers that are not limited are the powers in 63(3) of the ADR Act, set aside very – they are not limited, but 55(2) is limiting. Is that ‑ ‑ ‑

MR LIM: That may be one way of looking at it. Another way of looking at it is that when legislation such as this says “Nothing in this section limits”, that is ‑ ‑ ‑

BEECH‑JONES J: That is the words “other powers”. Other than what?

MR LIM: Other powers – but I make this submission, that legislation that says this provision does not limit or does not affect, often is subject to express indications that particular sections do limit or do affect, and the provision is really a general indication. You would not, for example, read section 55(2) as being exhaustive of what the Tribunal can do. It is making clear that it continues to have all its other powers under the ADR Act. It is not to be read as saying if the ADR Act, by picking up 53(7), confers a power to grant monetary compensation, section 55(2)(a) does not limit that power.

GLEESON J: How does the power in 55(2) to “decide not to take any action on the matter” affect the obligations and powers in 63 of the ADR Act?

MR LIM: One circumstance in which the Tribunal may – I was about to say, deciding “not to take any action on the matter” might be a reference to affirming the decision because it is correct and preferable and nothing further needs to be done. There may be other circumstances in which the Tribunal can decline to deal with an application because it is frivolous or vexatious or the like. I will check whether the Civil and Administrative Tribunal Act contains something express to that effect.

GAGELER CJ: Mr Lim, just for the moment, I am having difficulty understanding why you treat it as a necessary part of your argument, or at least part of your argument to say that section 63(2) of the Administrative Decisions Review Act in this context picks up section 53(7) of what we are calling the PPIP Act.

MR LIM: Certainly not an essential part of my argument. If it does not, then the power is there in 55(2), and I would make all the same submissions about the administrative character of that power, but I am trying to meet the argument that 55(2) is in a separate stream from section 63 and that it is a very different set of powers from what the agency itself can do on an internal review.

GAGELER CJ: You say it is part of an administrative continuum and the parallel nature of the powers indicates that.

MR LIM: Quite.

EDELMAN J: The other view of 63(2) would be that it is just a procedural working of 63(1), rather than providing any general powers that are then supplemented by 63(3).

MR LIM: In my submission, it certainly must be conferring some powers. Whether they are general or not, I am not in a position to respond to that.

GAGELER CJ: We will take the morning adjournment, Mr Lim.

MR LIM: May it please the Court.

AT 11.14 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.29 AM:

GAGELER CJ: Mr Lim.

MR LIM: Your Honours, three points that I said I would look at over the break. Your Honour Justice Steward – is there in the CAT Act the merits review language of “correct and preferable”? No, there is not, for the reason I gave.

STEWARD J: Thank you.

MR LIM: Secondly, why is section 66(2)(a), the deeming provision, needed in New South Wales? There is no one specific answer, but there are various rights and duties that would take decisions of administrators as their factum – for example, a firearms licensing decision or the like. Various rights and duties flow from original decision‑makers’ decisions and so it is necessary to deem the Tribunal’s decision to be the decision of the original decision‑maker to attract those rights and duties.

GORDON J: That then avoids the circularity argument you put before. It avoids the circularity that you talked about before.

MR LIM: The circularity I referred to before was what would happen if you did not have the carve‑out to say the deeming does not operate for the purposes of administrative review. If you did not have the carve‑out, then potentially you could say, well, the Tribunal’s decision is taken to be the administrator’s decision, so I am going to go for internal review again. That was the circularity point.

STEWARD J: Thank you, Mr Lim.

MR LIM: And your Honour Justice Gleeson, in relation to the Tribunal taking no action under section 55 of the PPIP Act, that has some correspondence with, coincidentally, section 55 of the CAT Act which contains general summary disposal powers.

To wrap up on the administrative continuum between section 53 and section 55 of the PPIP Act, we make the point that if an individual had a right to damages by reason of a contravention of an IPP, one would expect to find expression of that right somewhere in the prerequisite internal review stage. One might expect the agency to be directed to consider for itself whether some entitlement to compensation had arisen, but one does not find that. One finds, instead, a broad power to pay compensation if the agency thinks it is appropriate to do so.

Following the continuum into section 55, we say the character of the Tribunal’s power to award compensation is of the same nature, and the power, along with each of the other powers in section 55, can be seen and characterised as powers directed to bringing the agency’s conduct into conformity with the Tribunal’s decision as to what ought correctly and preferably have been done.

EDELMAN J: What is the compensation for?

MR LIM: The compensation is for loss or damage suffered by reason of the agency’s conduct and, I accept, conduct in contravention of one of the principles.

EDELMAN J: But it would not be open for the reviewer or for the Tribunal to decide to give compensation at large.

MR LIM: No.

EDELMAN J: The compensation has to be tied to the loss that has been suffered.

MR LIM: I accept that. That is express in paragraph (2)(a) – or was your Honour asking me about the internal review?

EDELMAN J: In either case, if the compensation is tied to the loss that has been suffered, why does the right to it not exist prior to the actual award of it?

MR LIM: Partly because it does not follow as of course in the way that damages would.

EDELMAN J: When would it be denied, then? Loss or damage is suffered as a result of a contravention. When would the power be exercised to say, no compensation payable?

MR LIM: On my construction, the agency itself – and the Tribunal on review – has a wide discretion to deny compensation for a variety of reasons. One example might be where, although the finding is made that the conduct or practice of the agency fell short of one of the standards, it was nonetheless not a serious enough breach to justify, in the normative sense, compensating the applicant for loss of damage that might admittedly have flowed from that contravention.

BEECH-JONES J: Is that what Justice Kirk was alluding to at paragraph 115 in the judgment at the core appeal book?

MR LIM: Yes. Certainly – of course, not decisive but so your Honours know, the NCAT has taken the view in its decisions that damages are discretionary.

An award of compensation is not, in our submission, exclusively judicial and we have offered various examples in paragraph 58 of our written submissions. We have mentioned act of grace payments to which the response comes, such payments are not compensatory or reflective an entitlement, but the examples expand beyond true act of grace payments. The ombudsman can recommend, and a minister can authorise, compensation for maladministration. So, that is a form of compensation that, at least loosely, will correspond to someone’s actual loss or damage, having arisen out some conduct of an agency identified non‑judicially as a form of maladministration.

In the Commonwealth sphere, the Fair Work Commission – not a court – can decide that a person’s dismissal was harsh, unjust or unreasonable and order the payment of compensation for lost wages. So, that is a form of compensation for a loss suffered because of an act of dismissal that an administrative body decides fails to meet the standard of not being harsh, unjust or unreasonable.

BEECH‑JONES J: Does the Commonwealth Privacy Commissioner have a similar role or power?

MR LIM: It is quite different. So, the commissioner can decide whether there was an interference with privacy, which is breach of one of the cognate principles. The commissioner can decide that the person is entitled to compensation, but the enforcement of that decision is quite different, and there is a right to a de novo hearing in a federal court. But, putting to one side the enforceability, yes, an administrative decision‑maker deciding contravention of some norm and awarding compensation for loss.

It is also put against me – and I said to your Honour Justice Gordon I would come to this point – that the damages under 55(2)(a) cannot be said to involve a variation or substitution of the original decision. In my submission, it can. The reason it can is what I alluded to previously in describing the conceptional nature of merits review of conduct, or merits review of a decision that, due to the affliction of time, has been enacted on or implemented.

When the reviewing body comes to decide that the decision is not correct or was not preferable and wants to give effect to what the correct and preferable decision is, it may well be that that requires the agency to change course to do something different from that which it has done. It is not necessary to characterise that as a judicial response to a contravention.

It is eminently open in an administrative sphere for an agency to decide that it has done the wrong thing, that it needs to correct course, and in some circumstances the only way to do that will be to take some sort of remedial action, including the payment of compensation. When that happens in an administrative scheme like this, it is properly characterised as a substitution of the original decision or a variation of what was previously done.

GORDON J: Can I ask a really basic question. In response to a question from Justice Steward in relation to the internal review, you said that there is no cap on compensation under section 53(7), but there is a cap under 55(2)(a). Does that matter?

MR LIM: Not to the characterisation of the nature of the powers.

STEWARD J: I assume NCAT can affirm a decision to pay more than 40,000 that has been made in internal review.

MR LIM: Yes.

STEWARD J: Yes.

GAGELER CJ: That goes back to the question of what is the decision under review and what is the status of the internal review decision.

MR LIM: It does, and I accept the force of what your Honour puts to me, that in a situation where, because of the continuum of conduct, it may be difficult at the tribunal review stage to disentangle what has happened originally from what has happened as a consequence of the internal review. That, in practical terms, the Tribunal might well be looking at – in fact, on the material before it at the time it conducts the review as required by section 63, may be, in practice, looking at a situation that has moved on from what obtained prior to the internal review. It is a little difficult to get around the language of section 55(1), which focuses on:

the conduct that was the subject of the application under section 53 –

But where that conduct, because of the internal review, has moved on, then so too the perspective of the Tribunal may have enlarged.

GAGELER CJ: Thank you.

MR LIM: In drawing together the various indicators to which I have pointed in this scheme, we emphasise that the task for the Court is one of characterising a function which could be achieved either judicially or administratively, and in performing that task of characterisation we submit that weight should be given to the legislature’s selection of an administrative review jurisdiction in which the task is performed – that is the chameleon doctrine point – and weight should also be given to the ultimate end to be achieved which, for all the reasons I have addressed, is to improve public administration rather than to adjudicate legal rights.

Can I turn now to the issue of whether the Tribunal’s decisions are binding and enforceable, and ask your Honours to take up section 78 of the Civil and Administrative Tribunal Act.

GAGELER CJ: Just before you do that, can I just understand – is it part of your case to say that an order under section 55(2)(a) of the PPIP Act is picked up by section 66(2) of the Administrative Decisions Review Act? That is, it:

is taken:

(a) to be the decision of the administrator –

MR LIM: Yes.

GAGELER CJ: That could never be so. That would be just completely inconsistent with an exercise of judicial power, would it not?

MR LIM: That is so.

GAGELER CJ: So, it is no longer adjudicative. It is attributed to one of the parties in dispute.

MR LIM: That is so. I accept that. So, I need to qualify what I said about the chameleon doctrine. That particular feature of the scheme is decisive of it being administrative. It could not be included if the scheme was otherwise to be achieved in a judicial way.

GAGELER CJ: Similarly, if you are correct in saying that section 63(1) of that Act governs the determination under 55(2), I think.

MR LIM: Yes. Yes. Section 78 of the CAT Act is expressed to apply to the recovery of amounts ordered to be paid by the Tribunal. As your Honours of course appreciate, this provision is engaged across many areas of the Tribunal’s jurisdiction, including many areas where it is undoubtedly adjudicating legal rights, including as between subjects and as between subjects and emanations of the State. So, compensation for breach of anti‑discrimination norms, compensation in tenancy disputes, a whole host of functions that are nothing like merits review depend on this provision.

GORDON J: Including costs orders.

MR LIM: Yes, including costs orders, which – as I can come to, if necessary, costs orders made by the Tribunal can be judicial, but they can also be administrative, taking their colour from the underlying function to which they are ancillary. So, if aspects of the Court of Appeal’s reasoning are not qualified, section 78 could present a very large problem for the enforcement of costs orders in administrative proceedings.

GORDON J: Do you go so far to say, as a result of the Court of Appeal’s reasoning, it would mean any time someone sought to, under 78, have a certificate of a registrar that operates as a judgment, that that would bring about an exercise of judicial power? If not, what is the consequence, which is wide, to which you refer?

MR LIM: We do say that about the reasons of the Court of Appeal, it is disputed by the amici and, for the reasons they give, it does not matter in this appeal whether the Court of Appeal was relying only on section 78 or section 78 in combination with ‑ ‑ ‑

GORDON J: The exercise of determination of legal rights.

MR LIM: Yes.

GORDON J: Yes. Let us assume for the moment that it is just relying on section 78, do you go that far?

MR LIM: If the proposition in section 78 turns the anterior function into a judicial function, then, yes, that is going to have very large undesirable consequences, because it applies to costs.

GORDON J: Thank you.

BEECH‑JONES J: I mean, if you went and had a government fee for getting a licence and the scheme was that the government can recover the fee by having it entered as a judgment debt, on that reasoning, which you reject, that would become an exercise of judicial power, would it?

MR LIM: It would, yes.

GORDON J: That is what I am asking you as to the way you understand or the way you submit we should read those reasons and the consequences that would flow from them.

MR LIM: I put it this way. To the extent the Court of Appeal is to be understood as saying registrability of a monetary order is decisive of judicial power, it is wrong.

GORDON J: Thank you.

MR LIM: Because section 78(1) is a general provision that applies across the range of the Tribunal’s jurisdiction, there does arise, from case to case, the question whether, despite its generality, it is truly intended to apply to any particular monetary order. We advance three textual reasons why the provision does not apply to damages under section 55 of the PPIP Act.

First, if your Honours accept, as I have submitted, that the Tribunal’s order is taken to be a decision of the agency, then the amount does not fall within the terms of section 78(1) as an amount ordered by the Tribunal. While, of course, the Tribunal has in fact made an order, it has done so only as a step in that being immediately substituted for the agency’s own decision and, upon being made, is deemed immediately by section 66(2) to be a decision of the agency, and, we would say, not a decision of the Tribunal for the purposes of section 78.

The second textual foothold is that section 78 is, in terms, confined to a purpose of recovery of an amount, which we submit presupposes a person’s unwillingness to pay the sum ordered. And because damages under the PPIP Act involve simply a different part of the Executive Government deciding that an agency should pay some money, it is inconceivable that there would be a need for recovery of that sum in the sense which section 78 presupposes. Thirdly, we have the point that the registrar’s certificate, by subsection (2):

must identify the person liable to pay the certified amount.

And because damages under the PPIP Act can be ordered against agencies that have no distinct legal personality, there would need to be some adaptation of the application of subsection (2), so the registrar would either have to work out, is this an agency that is a “person liable to pay”, if yes, I can write their name of the certificate, if no, do they represent the Crown and if so, should I write the State, or is there some other person who should be identified in the certificate?

Those questions are not necessarily straightforward or mechanical, and it is not to be supposed that this section contemplated the registrar performing those tasks in order to give the required certificate.

GAGELER CJ: So, if an order is made under section 55(2)(a) requiring a public sector agency to pay damages to a person, does the person have any remedy against the public sector agency to ensure compliance with that order?

MR LIM: No.

GAGELER CJ: Why would it not be consistent with your argument for the person to have a civil action for debt?

MR LIM: It would be consistent for them to have a civil action for debt. There is not a provision that creates a debt upon an order for damages. I should qualify my answer – there are, of course, other provisions of the CAT Act that provide for civil enforcement of Tribunal orders in an independent exercise of judicial power. Parties have not addressed specifically whether those would be available for this specific order. If they are, it is no problem for my argument, because it is in an independent exercise of judicial power that they would be enforced.

GAGELER CJ: Can I just ask one other question about costs. Are costs available in an application to the Tribunal for administrative review?

MR LIM: I am told, in certain circumstances. I will give a more precise answer when I can.

GAGELER CJ: Thank you.

MR LIM: The three textual footholds that I have just identified for the non‑application of section 78, we submit, are strengthened by the underlying nature of the administrative review which I have addressed on, because the distinctively administrative character of that review, in the absence of any enforceable legal rights generally support a construction which would not bring this form of civil enforcement into the regime. If your Honours accept that section 78 does not apply, then we submit that the Tribunal’s function lacks any indicium of judicial power.

The amici curiae suggest that the Tribunal’s orders, even if section 78 does not apply, would still be binding in a judicial sense. There is no express statement in the PPIP Act that the orders are not binding, which was the case in Brandy, but there is also insufficient affirmative basis to infer that they are binding in the requisite sense.

The legislative assumption is that agencies will comply by reason of bureaucratic convention, and that agencies will regard the Tribunal’s administrative review jurisdiction as conducive to ensuring compliance with legislative is one of the objects spelled out in the ADR Act I went to. That bureaucratic context distinguishes the scheme from the anti‑discrimination laws that were considered in Citta Hobart v Cawthorn and discussed this point of bindingness at paragraphs 13 to 16.

STEWARD J: Do you adopt Victoria’s submissions on this issue about section 78 and distinguishing Brandy?

MR LIM: Yes.

STEWARD J: I see.

MR LIM: A point also made by Victoria is my next proposition – this is point 3 in the outline – that, even if section 78 does apply, it is not sufficient to characterise the function as judicial. If I could ask your Honours to take up the decision in Brandy, which is in volume 3 of the joint bundle at tab 25. I am starting at page 267 of the report in the reasons of the four Justices.

BEECH-JONES J: Sorry, Mr Lim, what page is that, again?

MR LIM: Page 267 of the report.

BEECH-JONES J: Thank you.

MR LIM: Page 980 of the bundle. In this discussion, there is a restatement on that page of the well‑recognised difficulty in pointing to “any essential or constant characteristic” of judicial power. Then, against that recognition that there is no essential or constant characteristic, on page 268, at about point 5, their Honours identify enforceability as an aspect which may be decisive:

when it is otherwise equivocal.

And at page 269, around point 3, what is clear is that in Brandy’s Case, many other features pointed to a judicial character, including that the Commission decided:

controversies between parties . . . by the determination of rights and duties –

and the nature of those non‑discrimination norms meant that the Commission’s function was “closely analogous” to that of a criminal or civil court. So, it is clear that enforceability was not solely determinative of the judicial characterisation, it needed to be in combination with those other features. I will just mention, in the other set of reasons for judgment at pages 258 to 259, the feature of adjudicating a controversy about existing legal rights was also identified as important.

So, we take from this case that, at the federal level, enforceability is an important indicium. It can sometimes be decisive, but it is not sufficient in any case. And that must be true, a fortiori, at the State level, because the absence of a strict separation of powers in a State means that it is dubious to reason backwards from the mere fact that an order is ultimately enforceable to a conclusion that the anterior function was necessarily judicial. What is said at page 260 of the reasons in Brandy is, in our submission, a statement about the separation of powers at the federal level. That brings me to proposition 4 in my outline.

EDELMAN J: Just before you do, why do you say enforceability is an important indicium? Why is it not in the terms expressed at page 268 – just, essentially, a tie breaker if everything else is equivocal.

MR LIM: I accept that. I think when I say “important”, I mean because it can certainly perform the tie‑breaking function that it appears to have performed in Brandy.

GORDON J: What do you make of the last paragraph, then, on page 269 of Brandy? Is that consistent with that submission?

MR LIM: In Brandy, the features were equivocal except for the statement that it is not binding. That would have been decisive of the function being non‑judicial, but then, overlaying the statement that it is not binding was the automatic registration and enforceability, which was decisive in the other way.

GORDON J: Thank you.

MR LIM: Proposition 4 in my outline arises only in a situation where – frankly, it is difficult to see that the Court would reach it, but it arises only if I win on proposition 1 about the nature of the legal rights and the nature of the merits review, and then lose on both propositions 2 and 3. I say that is, in my submission, an unlikely scenario, because if your Honours are with me on the merits review nature of the function, it does seem that I should either win on point 2 or point 3.

Now, in the strange universe, though, where we have a merits review but an enforceable monetary order renders that merits review a judicial function, we are in the strange world of judicial power in a non‑matter. The question would then become whether a State Parliament lacks legislative power not only to confer judicial power with respect to matters – that is, justiciable controversies described in sections 75 and 76 – but also with respect to non‑matters on those subjects or topics.

Our submission on this point is that the scope of the Burns v Corbett implication depends on the extent to which there is the requisite logical or practical necessity for the implied limitation on State legislative power. In Burns v Corbett itself, there were obviously different views within the Court about whether there was any necessity at all and, for those who perceived a necessity, what the extent of the necessity was. Contrary to one submission, I think put by the Commonwealth, we submit that the plurality judgment of then‑Chief Justice Kiefel and Justices Bell and Keane did identify the necessity from which their Honours’ articulation of the implication arose and identified a necessity that was narrower in scope than that identified by your Honour Chief Justice Gageler.

The narrower necessity, in our submission, is that the determination of justiciable controversies described in sections 75 and 76 be decided only by courts having the minimum characteristics of courts and being amenable to appeal to this Court. We submit one sees that in paragraph 43 of the plurality’s reasons in Burns v Corbett and some other paragraphs collected in the outline of oral argument. We submit that that view was then, in paragraph 1 of Citta Hobart, which is tab 28 of the bundle, adopted by six Justices of this Court, including both your Honour the Chief Justice and Justice Gordon, who previously, in Burns v Corbett, had expressed respectively broader and narrower views of what the constitutional necessity was that supported the implied limitation on State legislative power.

We submit that the statement in paragraph 1 of Citta is correct and should be followed. To adopt the wider implication for which the Commonwealth contends would put certain statutory schemes beyond the power of any Parliament without any sufficient constitutional reason rising to the level of necessity.

So, to illustrate the point, if the statutory scheme in this case has resulted in the conferral on the Tribunal of judicial power in a non‑matter because of the combination of enforceable monetary orders and merits review, and if Burns v Corbett truly precludes that, it would follow that the State Parliament cannot confer that function on the Tribunal, or on a court, because it is within the lacuna of implied limitation from Burns v Corbett, and it would also be the case, on this hypothesis, that the Federal Parliament could not confer the function on a court because it would not be within federal jurisdiction, there being no justiciable controversy.

GAGELER CJ: So, let us take the example, I think, that is mentioned in the Commonwealth’s submissions, the paradigm example of an advisory opinion. Now, an advisory opinion that is a take it or leave it opinion is not an exercise of judicial power, so we are talking about binding advisory opinions as the paradigm here. So, we are looking at an exercise of judicial power that is not in a matter. I think you are contemplating that a State Parliament can confer on a State tribunal power to give a binding advisory opinion to parties on a matter arising under the Constitution or a matter arising under Commonwealth legislation, I think.

MR LIM: I also think that is right, save for this. Once you introduce into the hypothesis binding on parties there is just the risk that you have introduced the notion of a justiciable controversy in a matter, because why are there parties to this hypothetical proceeding?

GAGELER CJ: Well, you need a coercive, preclusive effect to have judicial power, do you not?

MR LIM: Yes.

GAGELER CJ: That is all I am introducing.

MR LIM: I see. I accept it follows, from the way I have put it, that that hypothetical scenario would be permissible. But if that is driving a necessity to prevent the conferral of judicial power in non‑matters, the exclusion of State legislative power will extend further than that quite bespoke example into – for example, one could imagine a State parliament wishing to amend its act of grace regimes or its ombudsmen schemes or similar integrity bodies, whereby Parliament wishes to give those somewhat independent executive bodies power to grant compensation, not simply to recommend it.

In order to make that power effective, to then pick up and apply, in the way that section 78 does, enforcement mechanisms that have been enacted for courts. But just to pick them up and apply them to orders made by integrity bodies, if there is no matter being resolved by the ombudsmen but the enforceability of the ombudsmen’s decision to grant compensation renders it judicial, then it would be outside the scope of any legislative power on the wider view of Burns v Corbett.

In answer to your Honour the Chief Justice’s question about costs under the CAT Act, there is usually no costs in section 60, but costs can be awarded if there are special circumstances. There are exclusions of certain categories of decisions in the administrative division, but they do not include the PPIP Act. Costs can be awarded.

GAGELER CJ: Thank you.

MR LIM: If your Honour pleases, they are my submissions.

GAGELER CJ: Thank you, Mr Lim. The Solicitor‑General for South Australia.

MR WAIT: South Australia has filed written submissions addressing two issues. The central proposition that we seek to advance in relation to the chameleon doctrine is that that doctrine has application to the conferral of
powers on State courts and tribunals as well as application, of course, in the Commonwealth sphere.

The central proposition that we seek to advance in relation to the question concerning the relevance of the enforcement mechanism, should it be applicable to orders made under section 55(2)(a), is that the availability of such a mechanism does not, in itself, foreclose the necessary analysis – holistic analysis – to determine the character of the power in question. But in relation to those propositions, we are content to rely on our written submissions, unless the Court has any questions with respect to them.

Finally, as to the proposed extension of the Burns v Corbett implication contended for by the Commonwealth, South Australia adopts the submissions of New South Wales just put by my friend Mr Lim and also those articulated in the outlines of oral argument filed by Queensland at paragraphs 2 to 7 and Victoria at paragraphs 5 to 8. Thank you.

GAGELER CJ: Thank you. The Solicitor‑General for the Northern Territory.

MR CHRISTRUP: Thank you, Chief Justice. The Northern Territory Attorney‑General makes two points in oral submissions. I will start with paragraph 2 of our outline which concerns policy, but it does also involve the question of whether NCAT is reviewing just the conduct of the internal reviewer or whether the review also includes – sorry, of the original decision made or whether it also includes that of the internal reviewer. Our second point concerns the proper interpretation of the Court of Appeal’s reasons below.

Starting with the functions of NCAT on review, can I ask your Honours to turn to the PPIP Act section 53, joint book of authorities volume 1, number 6, page 278.

GAGELER CJ: You do not need to give us those references.

MR CHRISTRUP: Thank you, your Honour. Subsections (1) and (2) of section 53 provide that the applicant is entitled to a review of the conduct of the public sector agency, and that the internal review is to be undertaken by that agency. As my learned friend for the appellant took you to, subsection (7) then sets out the powers that are available to the internal reviewer on that review. Subsection (8), which is the provision for my purposes, provides that the:

agency must notify the applicant . . . of—

(a) the findings . . . (and the reasons for those findings) –

and the proposed action and the reasons for that action. Then, critically, at subsection (c):

the right of the person to have those findings, and the agency’s proposed action, administratively reviewed by –

NCAT. That is a strong indication that what is being reviewed by NCAT at least includes what occurred at the internal review.

We should also note that it is a somewhat odd outcome that the Act establishes this scheme which provides for an original decision and then for an internal review mechanism, which has then gone on to NTCAT. It would be odd, by the time it gets to NTCAT, if what happened at the internal review stage is, if you like, entirely ignored or is of no relevance.

We should also emphasise that the subsection, in that it requires the internal reviewer to provide reasons for its findings and their proposed actions, is usually seen as a function for the purpose of facilitating some further or some subsequent review. However – fly in the ointment – section 55, which is what concerns the review by NCAT, subsection (1) provides that:

a person who has made an application for internal review under section 53 –

If that person is not satisfied with the findings or the action, the person can apply to NCAT. And then there are the final words:

of the conduct that was the subject of the application under section 53.

So, on a plain reading of that, that would at least, we say, be a reference to the original conduct, not the conduct on review. So, we accept there is intention between what appears in 53(8)(c) and what appears at the end of 55(1).

In our submission, the most sensible way of reconciling those provisions is that NCAT reviews both the original conduct of the agency and also the conduct as represented by the findings and the proposed action on the internal review. Thus, when section 55(2) refers to:

reviewing the conduct of the public sector agency –

then that refers to both of those matters. So, that is the construction point, your Honours. That then leads me to the question of the role of policy, which is part of our point in paragraph 2 of our outline. The point is in relation to section 64 of the Administrative Decisions Review Act and the application of the policy under that provision to the power in section 55(2)(a) of the PPIP Act to order damages.

The amici has submitted that a review under section 55 of the PPIP Act is solely concerned with the original conduct of the agency said to breach the complainant’s privacy and therefore section 64 attaches only to policy that was applicable to the conduct of the original administrator. It follows – so the argument goes for the amici – that because the original administrator was not concerned with determining whether that conduct complied with the IPPs or what, if any, remedy should flow from that breach, there could be no such policy to be applied by the Tribunal determining those matters. For the reasons I have given, we disagree with the amici’s construction of what it is that NCAT is reviewing, and we say it attaches to both. How that then feeds into section 64 of the Administrative Decisions Review Act, if I can ask your Honours to turn to that provision.

BEECH-JONES J: So, what provision is that, again?

MR CHRISTRUP: Section 64, your Honour.

BEECH-JONES J: Sorry, of which Act?

MR CHRISTRUP: Sorry, the Administrative Decisions Review Act.

BEECH-JONES J: Thank you.

MR CHRISTRUP: So, section 64(1) provides that:

In determining an application for administrative review under this Act of an administratively reviewable decision –

So that, we say, would include both what happened originally and also what happened on internal review:

the Tribunal must give effect to any relevant Government policy in force at the time the administratively reviewable decision was made –

Then it has the usual exceptions in relation to policy cannot be illegal and it cannot lead to an unjust outcome in the circumstances of the case. “Government policy” is then defined in subsection (5), and you will see that is policy at the highest level of the Executive Government, being the Cabinet, the Premier or some other Minister:

that is to be applied in the exercise of discretionary powers by administrators.

Section 64(4) then concerns, if you like, lower‑level policy and what that does, it gives NCAT a discretion to apply, or at least a power to apply lower‑order policy, at least where that policy was applied by the administrator.

So, what we say that works into is that NCAT, when dealing with a review concerning section 55(2)(a) in relation to damages or compensation, then section 64 compels it to apply any policy caught by section 64(1) and it would have the power, at least, to apply policy under subsection (4).

EDELMAN J: That is, of course, subject to the exception – what is an unjust decision? It might be very difficult to ascertain what is an unjust decision not to award compensation without applying judicial norms of when compensation ought to be made available.

MR CHRISTRUP: Your Honour, we read the reference to “unjust decision” as being a reference to that normal rule in administrative law that where you have a policy that can govern the exercise of an administrative discretion, then the first rule is, that policy cannot be inconsistent with the statute itself, and secondly, there must be enough leeway in the application of the policy such that where it does lead to an unjust – or it has to be, at least – the policy must allow for, at least, consideration ‑ ‑ ‑

EDELMAN J: You mean, it is like a built‑in Wednesbury‑type limitation?

MR CHRISTRUP: In a sense, I suppose that is true, your Honour.

BEECH‑JONES J: Do you say this is a statutory enactment of Drake, basically?

MR CHRISTRUP: Sorry?

BEECH‑JONES J: Do you say this is a statutory enactment of Justice Brennan’s decision in Drake?

MR CHRISTRUP: Yes, your Honour. It is a reflection of those principles, your Honour. That completes what I want to say about the second point in our outline. Can I move to the first point, your Honour, which concerns the proper interpretation of the Court of Appeal’s reasons.

There seems at least to be some controversy as to how to read the Court of Appeal’s reasons concerning the PPIP Act. We read the Court of Appeal to be saying that the mere fact that an order under section 55(2)(a) can or must be registered under section 78 was sufficient on its own to mean that NCAT was exercising judicial power. Now, we accept that the amici and the Commonwealth say that the Court of Appeal held that the registrability was merely a factor.

However, we are concerned that the Court of Appeal’s reasons may operate as a matter of precedent, if our interpretation of what they say is correct, and it would have some sweeping consequences for, we believe, both the States and the Territories. For example, in the Northern Territory, all orders of its Civil and Administrative Tribunal can be registered so that the Tribunal would always be exercising judicial power if the Court of Appeal’s decision is correct, even when that tribunal is performing orthodox merits review.

GAGELER CJ: So, what is the consequence of registration in the Northern Territory?

MR CHRISTRUP: It is like, or very similar, to what appears under the CAT Act. That is, it is treated and operates as – it operates as an order of a court.

GORDON J: So, if you have a debt, if you have an amount ordered, it operates as a judgment debt.

MR CHRISTRUP: Yes, your Honour. So, it is registered, and upon registration it operates as a judgment.

GORDON J: So, it seems that, at least to the extent that you are now putting to us, that the Commonwealth and the amici agree that it was not to be read as being determinative and you want that clarified.

MR CHRISTRUP: Absolutely, your Honour, for that reason.

GORDON J: Consistent with the view expressed by the Commonwealth and the amici.

MR CHRISTRUP: Yes, we would very much like clarification from this Court that what the Court of Appeal is really saying was that it was not just registration, but it was also their finding in paragraph 134 of their reasons. It was a combination of those two matters which ‑ ‑ ‑

GORDON J: It was a factor in the mix.

MR CHRISTRUP: Yes, absolutely, your Honour. The way we read paragraphs 140, 141 and 143 of the Court of Appeal’s reasons, reading them, one gets the distinct impression that they are treating registrability as
the end‑all and be‑all. I can take your Honours to those paragraphs if it would be of assistance.

GAGELER CJ: No.

MR CHRISTRUP: No. Thank you, your Honour. Then that is all I wish to say on that point. Thank you, your Honour.

GAGELER CJ: Thank you, Mr Solicitor. The Solicitor‑General for Queensland.

MR DEL VILLAR: Your Honours, the only points that the Attorney‑General for Queensland wishes to address relate to the very last point that my learned friend Mr Lim addressed, which is the issue of whether or not the Burns v Corbett implication extends beyond matters and instead expands to judicial power.

Your Honours are aware from the way that the case has been framed that that will only arise in a narrow set of circumstances. Submissions have been made and undoubtedly will be made to the effect that if your Honours can decide this on some other basis. Your Honours should; we agree with those submissions, but my submissions are going to be premised on the view that your Honours may have to decision this point.

Your Honours, the Burns v Corbett implication as described in paragraph 1 of Citta Hobart, which your Honours will find reported in [2022] HCA 16; 276 CLR 216 – and that is volume 3 of the authorities, tab 28, page 1147 – speaks in terms of matters. And, as my learned friend Mr Lim has indicated, that, in my submission, should be taken to be the considered view of the Court as to the reach of the Burns v Corbett implication.

One reason that we point out in our oral outline at paragraph 3 for that is not only the use of the term “matters” in relation to the colourability aspect of the judgment, but also the fact that the Attorney‑General for Queensland in that proceeding in fact made a submission to the effect that the implication was to be better understood along the lines that are now being put by the Solicitor‑General for the Commonwealth in this matter, which is that it extends beyond matters. So, what can be said in paragraph 1 and in the remainder of the judgment in Citta, in my submission, is that that proposition was not accepted.

Your Honours, can I deal next with what seems to be at the heart of the concern of the Commonwealth in its written submissions at paragraph 12, which is that if judicial power with respect to the subject matters in section 75 and 76 can be conferred on State tribunals, then that would raise the spectre of these tribunals exercising judicial power to give advisory opinions with respect to matters arising under the Constitution. This spectre, in my submission, should not scare your Honours, because it is largely, if not entirely, illusory.

An advisory opinion does not resolve a question about the rights, duties and liabilities of parties to a proceeding, and it does not, at least generally, correspond to descriptions about judicial power. Your Honours, we have provided in paragraph 4 of our oral outline some of these cases which define judicial power. If I could ask your Honours, as well, to turn to one of the cases there mentioned, which is AZC20 [2023] HCA 26; (2023) 97 ALJR 674, which your Honours will find in volume 8 of the authorities, tab 65.

The passage to which I would ask the Court to direct its attention is found in the judgment of her Honour Justice Gleeson at paragraph [124], which your Honours will find at page 704 of the report, it is page 3215 of the bundle. The point that we would make, your Honour, is that the definition of “advisory opinion” which your Honour Justice Gleeson outlines there:

an opinion ‘rendered by the court at the request of the government or an interested party indicating how the court would rule on a matter –

is one that will very seldom raise questions about judicial power. The conferral of such a function on a State tribunal itself would be a powerful indicator that that judicial power is not intended to be conferred, because a State tribunal is not typically regarded as exercising judicial power, and a function of this nature would simply, when combined with that, would lead to a ready inference that judicial power is not conferred.

BEECH‑JONES J: Mr Solicitor, just picking this up. How could you have a judicial dispute – I will call it that – between residents of different States but not have a matter?

MR DEL VILLAR: It is difficult to understand how one could have one. Your Honours, it is quite difficult to imagine a circumstance that a dispute between residents of a State would not involve a matter.

BEECH‑JONES J: If you had a – supreme courts often give advice to trustees. I do not know if there is a view been taken about whether that is judicial power, but maybe it might be prospective.

MR DEL VILLAR: There is a view that has been taken that there are a number of exceptional cases to do with matters, some of which are mentioned by your Honour Justice Edelman in the case of AZC20, and advice to trustees and so forth, there would be a strong argument, in my submission, that those would already be covered by the exceptional circumstances of a matter.

BEECH‑JONES J: Of being a matter. But if they were not, and a beneficiary lived in another State, supreme courts – no, they would not be able to determine that either, would they? No, federal courts could not. A federal court could not be conferred with that power if that was not a matter.

MR DEL VILLAR: Federal courts cannot exercise ‑ ‑ ‑

BEECH‑JONES J: Yes, indeed. Sorry, I took you off your argument.

MR DEL VILLAR: No, your Honours. There are only two other points that I wish to make and I can make them fairly shortly.

EDELMAN J: I mean, this whole point arises because if we get into a world where enforceability is driving the characterisation, it really is the cart driving the horse.

MR DEL VILLAR: We are in complete agreement with that, your Honour. Can I just make two points in relation to the two main cases on which the Commonwealth relies, which are In re Judiciary and Navigations Acts and Commonwealth v Queensland, which is the Queen of Queensland Case.

As we pointed out in our oral outline at paragraph 5, the law in question in re Judiciary and Navigation Acts did not simply provide for an advisory opinion, it was described by the majority at page 264 as providing for “an authoritative declaration of the law”. That is because it was being conferred on the High Court, and it was to be assumed that all other courts and other persons in the country would follow the decision of the High Court.

That proposition was made explicit in his Honour Justice Higgins’ dissent. If I could ask your Honours to turn briefly to re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257, and if I could ask your Honours to turn to page 270, which your Honours will find at page 2185 of the joint bundle. If I could ask your Honours to turn to the first full paragraph on that page, your Honours will see – this is the paragraph beginning:

That a determination would be an aid to the Government is unquestionable.

And it is the next sentence which, in my submission, underlies the peculiar features of the law in question:

It would not be a judgment binding all the world, as has been suggested, or binding as res judicata between parties who have not been heard; but it would be an authority of great weight – a decision which, unless overruled, the Courts would follow in actions between parties –

In other words, the provision of this opinion by the High Court, the highest court in the judicial hierarchy in Australia, would be treated, as it were, a precedent by all other courts. The similar effect is the reasoning, in my submission, in Commonwealth v Queensland, which your Honours will find reported in volume 134 – I pointed that out, his Honour was in dissent. My point is that this is consistent with the proposition in majority that what was being sought was an authoritative declaration of the law. If I could pass on to Commonwealth v Queensland ‑ ‑ ‑

GAGELER CJ: It was a determination, to use the statutory language – a determination of law.

MR DEL VILLAR: Yes. If I could turn next to Commonwealth v Queensland [1975] HCA 43; (1975) 134 CLR 298, which your Honours will find in volume 3 of the authorities, we would simply emphasise this about that case. The effect of the Act in question was set out by his Honour Justice Gibbs, with whom other members agreed to form a majority, and that effect of the Act in question is set out at page 310 of his Honour’s judgment.

His Honour there rejected the argument that when the Judicial Committee provides what was said to be just advice, that it is just advice. Towards the end of the first full paragraph, his Honour says:

It cannot in my opinion be doubted that if s. 3 of the Act is valid it confers on Her Majesty the power to refer the questions or matters to which it relates to a judicial body for judicial advice. And the judicial body to which such questions or matters may be referred is the highest in the hierarchy of Australian courts, the supreme tribunal by whose decisions, speaking generally –

his Honour goes on:

all Australian courts are bound. The question remains whether legislation having this effect is valid –

And in my submission, the advisory opinions in those cases had a series of characteristics which are unlikely to be ever repeated in the case of State tribunals. You are dealing here with courts at the peak of the judicial hierarchy, whose decisions or pronouncements or determinations will
effectively be binding on all other courts in the country. That simply will not be the case with advisory opinions given to State tribunals.

Your Honours, unless I can be of further assistance, those are my submissions.

GAGELER CJ: Thank you. The Solicitor‑General for Western Australia.

MR BYDDER: Your Honours, the matters that I intended to raise by way of oral submissions have already been substantially addressed. In those circumstances, we propose to rely on our written submissions and oral outline and, in addition to that, to adopt the submissions on the Burns v Corbett point of New South Wales and Queensland and those submissions that are foreshadowed by Victoria in their outline at paragraphs 5 to 8.

Unless the Court has any questions for me, those are the submissions for the Attorney‑General for Western Australia. May it please the Court.

GAGELER CJ: Thank you. The Solicitor‑General for Victoria.

MR POUND: If the Court pleases. The first point that we would seek to make in our outline also related to the manner in which the Court of Appeal’s reasons regarding the role of enforceability or the importance of that criterion are to be understood. We have dealt with this in our written submissions at paragraphs 36 to 42, and we adopt the submissions that have been made by the Solicitor‑General for the Northern Territory.

The only other point that we would add is that the Court of Appeal did, to be fair, identify one other characteristic that it said was an indicator of judicial power, and that was the nature of the power to make an order for the payment of damages in section 55(2)(a) of the PPIP Act. That can be seen in summary form at paragraph 134 of Justice Kirk’s judgment, at page 115 of the appeal book.

His Honour there listed a number of features pointing to a non‑judicial characterisation. Importantly, we say, they included the rights at issue and the fact that they were not independent, pre‑existing rights, and that they were given effect only to the extent set out in the statutory scheme. His Honour then went on to say that compensation was of a slightly different character and was characteristic of judicial power. However, for the reasons we have given in paragraph 33 of our written submissions, we say it could also be characteristic of the exercise of administrative power.

At paragraph 128 of his Honour’s judgment, at page 112 of the appeal book, he said much the same thing about every other remedial power that is given to the Tribunal under section 55(2), that is, that:

even if they are the sorts of orders which could have been made in the exercise of judicial power, they are also decisions which could be made as an exercise of administrative power.

And we would say that his Honour ought to have said the same thing about the power to award compensation in paragraph (a). For those reasons, we say that this case is distinguishable from Brandy because the judgments in Brandy treated the enforceability of the Commission’s orders as determinative only because they also considered that the nature of the Commission’s functions were indicative of judicial power, because the Commission was making a determination of a contravention of a pre‑existing right or obligation. In other words, the other factors were not equivocal – they pointed toward a conclusion of judicial power which registration and enforceability confirmed.

Here – unlike the Commission – NCAT does not determine pre‑existing rights or duties under the PPIP Act and the question at issue is only cognisable through the regime set up by the Act under Part 5, for the reasons that Mr Lim has already addressed, turning principally on the interaction between sections 21, 69 and Part 5.

The second point we would make is to support the submissions that have already been made in relation to the Commonwealth’s proposition that Chapter III impliedly denies State legislative competence to confer judicial power with respect to the subject matters in sections 75 and 76 of the Constitution in a non‑matter. We would support the submission that it is not necessary to determine that question in this case. It would only be necessary to do so, as my learned friend Mr Lim has said, if the Court concluded that the Tribunal was exercising judicial power but not in a matter.

In our submission, that is very unlikely to occur in this case. Looking through either prism is very unlikely to yield a different result. We say that because, in our view, a conclusion that the Tribunal was exercising judicial power would only be reached if the Court had also concluded that the Tribunal was determining a controversy about pre‑existing rights or obligations and its determination was binding and enforceable. In our submission, that would also lead to the conclusion that the Tribunal was doing so in a matter.

EDELMAN J: One would have to ask – I mean, if one is asking what is the extent of the implication that was discovered in Burns v Corbett, you have to ask: what is basis for the implication? The purpose of the implication was said to be to exclude the existence of concurrent State judicial power that existed alongside federal judicial power. There was no concurrent State judicial power to make determinations in relation to Commonwealth legislation or make determinations in relation to the Constitution. So, there is no – the implication has no purchase in those circumstances anyway.

MR POUND: We would adopt that, your Honour. The point that we have made in our outline – and I will expand upon it briefly, if I may – is that in Burns, and as the principle stated in Burns was restated in Citta at paragraph (1) – the negative implication that denied the States the power to confer on State tribunals adjudicative authority in matters of the kind listed in sections 75 and 76 was, essentially, the mirror of what was expressly authorised by Chapter III, but the negative implication that the Commonwealth seeks here would go further. We say it is at least possible that that would encroach upon the constitutional sphere of the State judicature more than necessary to ensure federal control of the adjudication of federal matters.

In that context, we would draw your Honours’ attention to a passage from the judgment of Chief Justice Dixon, Justices McTiernan, Fullagar and Kitto in Boilermakers that was quoted in the judgment of Chief Justice Kiefel and Justices Bell and Keane in Burns v Corbett at paragraph 48, where they referred to the fact that:

the constitutional sphere of the judicature of the States must be secured from encroachment –

but only to the extent necessary to ensure that the aims and requirements of Chapter III are fulfilled. For those reasons, we would say that there is another good, prudential reason why the Commonwealth’s submission should not be determined unless and until a case arises where it squarely must. In the case of the advisory opinion example, there are no examples that we can find of the sort of conferral of an advisory opinion power on a tribunal that would clearly be judicial, and for that reason we support the submissions made by the Solicitor‑General for Queensland that the example is illusory.

If the Court pleases, those are our submissions.

GAGELER CJ: Thank you. The Court, at this stage, will take the luncheon adjournment.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.14 PM:

GAGELER CJ: Mr Free.

MR FREE: Your Honours, our oral submissions, like our written submissions, will focus on the two primary issues: would the exercise of the Tribunal’s jurisdiction on an application for a review of conduct under the PPIP Act involve the exercise of judicial power and would the determination of such application involve a matter in Chapter III terms?

The Commonwealth, as your Honours know, have introduced a third aspect, which is if the NCAT proceeding does not constitute a matter, does the conferral of jurisdiction nevertheless still infringe the limitation identified in Burns v Corbett? We do not seek to make submissions on that topic. Our submission on that point is a brief one, which is that on the facts of this case, which is, of course, our primary interest, if your Honours are with us on the judicial power question, it will follow, we would say inevitably, that you would be with us on the matter, and that is the way of resolving that question, so the ‑ ‑ ‑

GORDON J: Also, do you accept Mr Lim’s argument that if we were against you on the judicial power, then it does not arise?

MR FREE: Yes, your Honour. So, your Honours, with that introduction, can I start with the statutes and, in particular, the PPIP Act. I will, of course, seek to avoid repeating what are merely introductory matters that my learned friend Mr Lim, has already attended to. But there are some important differences between us on how one reads the PPIP Act and, importantly, the interaction between the PPIP Act and the ADR Act in terms of understanding what NCAT’s jurisdiction is in a review of this kind. Those are matters really quite fundamental to properly characterising the power.

So, if we could start with section 55 of the PPIP Act and draw attention to something that did emerge this morning, but we say is of critical importance, which is the accurate identification of the subject matter of the Tribunal’s review. So, there are effectively two preconditions – or a precondition: a person, having:

made an application for internal review . . . is not satisfied with –

either:

(a) the findings . . . or

(b) the action taken –

We would emphasise that they are preconditions to bringing an application to the Tribunal, rather than elements of its role or descriptions of its role. You see that from what follows:

the person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the conduct that was the subject of the application under section 53.

So, in very clear terms, a description of what the review entails. It is a review:

of the conduct that was the subject of the application under section 53.

What is that conduct? That is made clear by section 52, a provision we say informs the context of Part 5 and reviews in a quite significant respect. Section 52(1):

This Part applies to the following conduct—

(a) the contravention by a public sector agency of an information protection principle that applies to the agency,

(b) the contravention . . . of a . . . code of practice that applies . . .

(c) the disclosure by a public sector agency of personal information kept in a public register.

You see in subsection (2):

A reference in this Part to conduct includes a reference to alleged conduct.

Now, that picks out three bodies of rules created by this Act for the special treatment of being subject to review under Part 5, IPPs, codes and one aspect of section 57, which is to do with public registers, and that is:

the disclosure by a public sector agency of personal information –

So, those are the only forms of conduct or alleged conduct that can be the subject of an application.

EDELMAN J: Why would not a review of the internal review indirectly be a review of the following conduct?

MR FREE: Of the following conduct? Because it is not any of those things, your Honour. It is not a review.

EDELMAN J: It is not directly – the direct subject of the review is the internal review – but indirectly, it would necessarily be a review of those subject matters.

MR FREE: In my submission, that reading would be contrary to the words used in 55, where it is review of the conduct that was the subject of the original application for internal review. So, that really takes you back to the starting point. It is textually awkward to try and find any way of cramming in the internal review itself, either in its conduct – so, the conduct of the internal review – or its outcome – and I will come in a moment to examine those matters in more detail.

But also, contextually and purposively, there is little point in turning the external review in the Tribunal into a Royal Commission into the internal review of the agency. As with more conventional merits review, one is cutting through to the true issue. Someone is complaining of conduct that contravened their privacy in one or the other of those specific respects, and that is the meat of the matter.

GORDON J: How does that deal with the Northern Territory’s reference to and reliance upon section 53(8)?

MR FREE: Yes, your Honour, I was going to come to that directly. We accept there is some tension between those two provisions, but there is a way of reading them harmoniously. The first thing we would say is that section 53(8) is a provision describing what the applicant must be notified of – it is not describing the Tribunal’s jurisdiction or the nature of an application for review as directly as 55 is, so to the extent that it is ‑ ‑ ‑

GORDON J: Is that right? I mean, (8) says that they are to:

notify the applicant in writing of—

. . .

(c) the right of the person to have those findings –

being the findings of the internal review:

and the agency’s proposed action, administratively reviewed by the Tribunal.

MR FREE: Yes, your Honour. But the submission I would make is, to the extent there is any inconsistency between those two provisions – and I will come in a moment to how we say you can reconcile them ‑ ‑ ‑

GORDON J: Thank you.

MR FREE: ‑ ‑ ‑ but that 55 would be understood as a more direct description of what is the Tribunal’s jurisdiction enlivened by an application for review under that section. So, the more direct language of 55, we would say, it governs. The way we would say ‑ ‑ ‑

GAGELER CJ: Mr Free, forgive my ignorance of the background here, but section 52(4) excludes the ordinary internal review provisions of the ADR Act.

MR FREE: That is right.

GAGELER CJ: Where they are followed, what is the decision that is reviewed by the Tribunal?

MR FREE: One can only get it by describing the decision as conduct, and it is the original conduct, and that is because of the expansive definition of “decision” ‑ ‑ ‑

GAGELER CJ: I am sorry, I am asking a question about the ordinary operation of the Administrative Decisions Review Act. So, here, we have a substituted regime.

MR FREE: Yes. I am sorry, your Honour.

GAGELER CJ: But where you have – operating ordinarily, you have an original decision, you have a decision on internal review, and then something gets reviewed on the merits by the Tribunal.

MR FREE: Yes, your Honour.

GAGELER CJ: What is it?

MR FREE: I will need to take that on notice, if I may – whether it is described as the decision as revised on internal review or the original decision.

GAGELER CJ: If it is described as the original decision, then it is not really a great point of distinction, then.

MR FREE: Well ‑ ‑ ‑

GAGELER CJ: Anyway – we will wait and find out.

MR FREE: Yes, your Honour. I will return in a few moments to what we say is the more orthodox operation of the ADR Act provisions and the concept of merits review ‑ ‑ ‑

GAGELER CJ: Thank you.

MR FREE: ‑ ‑ ‑ for what are, if I can use this label in the course of my address, traditional reconsideration applications – a decision is made by a decision‑maker, an aggrieved person wants that to be reconsidered, initially internally, still aggrieved, externally. The point we will seek to develop is that is a radically different exercise from what the Tribunal is engaged in here.

Coming back to your Honour Justice Gordon’s question to me about how to read 53(8) and 55, the first point we would make – and it hinges off the point I made earlier that 53(8) is about what the applicant must be notified of. So, it may have been perceived by the legislature that the applicant is more able to understand a notice which says, if you are aggrieved by your internal review, you can have, effectively, the internal review’s findings reviewed – even if that is not technically an exact description of the Tribunal’s jurisdiction, it might still serve the purpose of putting them on notice.

The other point we would make is that to advise them that they have a right to have those findings and the agency’s proposed action administratively reviewed by the Tribunal in one sense just sends you to section 55 and the ADR Act to say, well, what is involved in “administratively reviewed”, and, on that inquiry, we would say it reveals that it is the conduct, not the – the original conduct, if I can put it that way, rather than the internal review. If your Honours were against us on those submissions ‑ ‑ ‑

EDELMAN J: Sorry, the original conduct rather than both?

MR FREE: Yes, your Honour, yes. If your Honours were against us on those, and there is just an irreconcilable inconsistency between them, we would say 55 is to be treated as the authoritative statement, including because it better aligns with 52, in the nature of the conduct that is the subject of review is the conduct alleged to be a contravention, not what the agency has done about an internal review.

STEWARD J: You might say that the means by which you are to have the internal review findings reviewed because you are dissatisfied with them is by the Tribunal reviewing the original contravention.

MR FREE: Yes, precisely, your Honour. That is our way of reconciling.

STEWARD J: I understand.

MR FREE: So, your Honours, that is the nature of the conduct that can be the subject of review. Your Honours have been taken to where in the Act one finds the information protection principles. They are from section 18 through to 19. If I could just take you to section 16 to remind you of the particular information protection principle that was in issue in one of the two privacy applications that is the subject of a Court of Appeal decision. The principle in section 16 that:

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.

I will take your Honours a little later to the Privacy Act (Cth), which contains an almost privacy protection principle and which is the subject of conferral of jurisdiction on the Federal Court and the Federal Circuit Court and the Privacy Act (Cth).

The observation we would make about the information protection principles is that they are expressed themselves – and I will come in a minute to 20 and 21 – in clear, mandatory terms. There is nothing unusually amorphous or evaluative in them that would defy judicial application, and I will take you a little later also to some of the consideration in Thomas v Mowbray of similar phrases like “reasonable necessity” to those which emerge here and the High Court’s consideration of the wide‑ranging context in which courts apply similar concepts.

So, we would say there is nothing particularly amorphous or unusually evaluative about the information protection principles. Their normative character, we would say, is made perfectly clear by section 20 and section 21. Section 20 provides for the information protection principles to apply to public sector agencies. That is subject to modification by codes and otherwise subject to the Act. I will take you to some of the ways in which that operates. Section 21 imposes, we would say, in clear terms, a legal obligation:

A public sector agency must not do any thing, or engage in any practice, that contravenes an information protection principle applying to the agency.

Subsection (2) links one to section 52:

The contravention by a public sector agency of an information protection principle that applies to the agency is conduct to which Part 5 applies.

We draw attention to the language of “contravention” in subsection (2) and in section 55, wholly consistent with these being legal obligations imposed on agencies. The fact that they are described as principles in that context we would say is neither here nor there, it does not detract in any way from their character as binding legal obligations imposed on the agencies.

They are, as section 20(2) recognises, otherwise subject to the Act, subject to modification by the privacy codes of practice. There are various statutory exemptions in the Act – from section 23 through to section 26 there are exemptions relating to various law enforcement activities and agencies, ASIO’s activities, exemptions where non‑compliance is lawfully authorised, et cetera. Then in section 41, there is a power conferred on the Privacy Commissioner with the approval of the Minister to make a written direction that:

(a) a public sector agency is not required to comply with an information protection principle or a privacy code of practice, or

(b) the application of a principle or a code . . . is to be modified as specified in the direction.

You have seen – and my learned friend Mr Lim has taken you to – the code provisions, which I will touch on in a moment briefly, as the other category of instrument that can be made according to the procedure in the Act to impose different requirements – not to be more stringent, but different requirements from those set out in the IPP.

The point we would make ultimately about this scheme is that the fact that the prima facie statutory norms in the information protection principles are subject to various exemptions within the statute and subject to the possibility of further modification through one or other of the modes I have taken you to, does not detract in any way from their character as binding legal norms. The content of those norms for any given agency will be affected from time to time by whatever instruments there might be – codes, directions – whether the statutory exemptions are enlivened. That is unremarkable when we get to the question of judicial power and whether these are legal rights and obligations of the relevant kind.

So, we would say, ultimately, nothing turns on that and when you think about the position of delegated legislation which can and does alter the content of statutory norms, including in what are sometimes pejoratively called Henry VIII clauses or powers, that is a characteristic of legal rights and obligations in this country created by statutes. It does not deny them that character.

Can I say something about section 33, which my learned friend took you to, dealing with privacy management plans. Our learned friend was taking the Court to this by way of seeking to develop the proposition that this Act creates bureaucratic norms rather than legal norms. The first observation we would make about that, echoing a question that your Honour Justice Edelman asked our learned friend, is that that is a false dichotomy expressed in broad terms. Many legal norms, including the whole body of administrative law, could be described as applying to the exercise of bureaucratic power – they operate in a bureaucratic context.

If it is intended to imply something less than a legal obligation in a bureaucratic context, then that much can be accepted as a matter of principle. If something is merely guidance or recommendatory or has no binding legal force, then that is of a different order. The example our learned friend took you to in section 33 is an example of that different kind of provision within this Act. So:

each public sector agency must prepare and implement a privacy management plan.

You see that it must include various things as described in subsection (2):

the devising of policies and practices to ensure compliance –

et cetera. Critically, this does not give rise to legal obligations equivalent to the IPPs or codes of practice. An affected person cannot complain of a contravention of a privacy code of practice or of a failure to have one – anything of that nature. So, our learned friends’ example ‑ ‑ ‑

BEECH‑JONES J: Sorry, did you mean to say privacy management plan or privacy code of practice?

MR FREE: I am sorry, I meant to say privacy management plan.

BEECH‑JONES J: I see.

MR FREE: Those are bureaucratic norms, it seems, of the kind our learned friend would say, and we would say that the distinction within this Act between those and the binding norms contravention, of which give rise to consequences, is telling. Now, Part 3 of the Act deals with privacy codes of practice. There is an equivalent provision to section 21 – that is, section 32 – that imposes the legal duty of public sector agencies to:

comply with any privacy code of practice applying to the agency.

And section 32(2):

contravention . . . is conduct to which Part 5 applies.

I will just take your Honours briefly to section 57, which is the relevant provision dealing with disclosure of information from a public register. It is the obligation in section 57(1) that is picked up as a contravention – or a provision, the contravention of which can be a subject of review under Part 5.

So, the universe of things that can be the subject of review by the Tribunal is confined to IPPs, codes of practice that are applicable and that particular obligation as to disclosure, all of which the agencies are legally required to comply with. Failure to comply constitutes a contravention.

There are then different schemes within the Act for complaining about not just contraventions, but other privacy‑related matters and we would say the different treatment of those avenues of complaint is telling when one comes to the Tribunal. So, the Privacy Commissioner, beginning at section 45 and onwards, may receive complaints. You see in section 45(1):

A complaint may be made . . . about the alleged violation of, or interference with, the privacy of an individual.

So, that is a much broader concept than Part 5 contraventions. You see in subsection (2):

The subject‑matter of a complaint may relate to conduct to which Part 5 applies –

and there is an obligation – I just missed the reference, your Honour, but there is an obligation in the Act for the Privacy Commissioner to tell complainants if they have – it is 46(2), your Honours:

If the subject‑matter of the complaint relates to conduct to which Part 5 applies, the Privacy Commissioner must inform the complainant of the review process under –

Part 5. The Privacy Commissioner’s powers in dealing with these complaints are very different from the Tribunal. You can see in section 48, the Privacy Commissioner has a general power to:

(a) deal with the complaint, and

(b) make such inquiries and investigations in relation to the complaint as the Privacy Commissioner thinks appropriate.

Section 49, have to attempt:

to resolve . . . by conciliation.

And in section 50:

may make a written report as to any findings or recommendations by the Privacy Commissioner in relation to a complaint dealt with by the Commissioner –

So, that is a bureaucratic process for handling of complaints with general powers to investigate and make findings, discretionary powers – the pointy end – no power to make orders requiring agencies to do anything. So, very different in substance from the powers and the review jurisdiction that the legislature chose to give to the Tribunal.

Can I then say something briefly about the nature of internal review. If you can go to section 53, the overarching point we want to make is that there are actually substantial differences between how an internal review is conducted and the outcome of an internal review as opposed to Tribunal review. So, they do not mirror each other. They are, really, quite deliberately different. Their subject matter is the same – that is, it is an application for review of conduct where the applicant is aggrieved, you see that in 53(1). In 53(2):

The review is to be undertaken by –

I just emphasise those words, because how the public sector agency undertakes internal review is affected by some of the detail in this provision. So, it is:

to be undertaken by the public sector agency concerned.

Subsection (4):

Except as provided by section 54(3) –

And I will take your Honours to that in a moment, but that is an arrangement whereby an agency can ask the Privacy Commissioner to investigate an internal review application:

the application must be dealt with by an individual within the public sector agency who is directed by the agency to deal with the application.

Then there are some requirements about that person, including they are “not substantially involved” in the matter. Then, subsection (5), that individual:

must consider any relevant material submitted –

Subsection (6) deals with the completion of the review. Then subsection (7) reverts from what that individual has been doing to then the agency. So:

Following the completion of the review, the public sector agency whose conduct was the subject of the application may do any one or more of the following –

Your Honours have been taken to the options available. They are substantially different powers when it comes to outcome from the Tribunal, as we will see in a moment. They are internally directed about the agency’s own management of the issue, so they obviously do not take the form of an order requiring anything to be done.

The payment of compensation as part of taking “such remedial action as it thinks appropriate” is effectively at large. It is subject to (7A) that there are certain types of situations to do with convicted inmates that cannot give rise to compensation, but otherwise no monetary limit, it is not subject to a finding of particular forms of loss or damage, unlike the Tribunal, and so we would say a number of pointers to substantial difference in the ultimate outcome of the internal review as opposed to the Tribunal. I mentioned 54(3), if your Honours just note that:

The Privacy Commissioner may, at the request of the agency concerned—

(a) undertake the internal review on behalf of the agency, and

(b) make a report to the agency in relation to the application.

So, read in context, we would say that is the equivalent to what the individual identified in 53(4) is doing. Not working out outcomes, but, in substance, investigating, making findings about the conduct, et cetera. It is left to the agency separately to work out what to do about it.

Then, if we can go back to section 55, I have taken you to 55(1), describing the nature of an application flowing through to the nature of the Tribunal’s review jurisdiction. At the other end of that process, what is the outcome. In 55(2), which you have been taken to, we just want to draw attention to a number of elements in the language used. All of these outcomes, as reflected in the chapeau, are orders, and they are all expressed as orders requiring things to be done or not done. So, the compulsory nature of the outcome of the tribunal process, we would say, is reflected in the language of 55(2).

His Honour Justice Kirk, with whom the other members of the Court of Appeal agreed, correctly observed that these orders take the form of, effectively, a tribunal speaking to the agency. Quite alien – and I will take you in a minute to some of the cases which have considered the concept of standing in the shoes of the agency. They are also akin to the types of orders made by an adjudicative tribunal; mandatory and prohibitory injunctions, awards of damages.

In that context, Justice Kirk, we would say, with respect, correctly drew attention to the use of the word “damages” in 55(2)(a) as a deliberate choice not to use the word “compensation”, which was the concept in the internal review context. So, they are compensatory damages, but the use of the word “damages”, we would say is reflective of their character, that they are damages to compensate for loss suffered as a result of a breach of a legal duty; a familiar use of language invoking a form of relief characteristic of judicial power.

Now, the steps I have taken you through demonstrating that the subject matter of an application is a contravention of an IPP or a code, those are binding legal instruments that agencies must comply with. The outcome where the Tribunal determines that there has been a contravention can include an award of damages and/or other relief. All of those things, we would say, have the classic elements of an exercise of judicial power:

quelling controversy about legal rights and legal obligations through ascertainment of facts, application of law and exercise, where appropriate, of judicial discretion.

That is the way it was phrased in Rizeq at paragraph 52. So pre‑existing legal obligations and ascertainment of facts, i.e., what conduct occurred; the application of those findings of fact to the existing legal rights, leading to a finding of either contravention or no contravention; and a remedial response. A world away from ex gratia payments where the very point of an act of grace payment or of maladministration at large is, although no particular legal duty has been breached, there is recognition on the part of the Executive that someone has suffered damage and ought be compensated simply as a matter of grace, of moral acknowledgement rather than legal wrong.

EDELMAN J: So, what does the “may” do in subsection (2), then, at least in relation to paragraph (a)? Is it read as a must?

MR FREE: Well, two steps, your Honour. What “may” is doing is covering all kinds of possibilities, including that on reviewing conduct, the Tribunal might conclude there has been no contravention at all. If it finds the conditions for an award of – sorry. If it finds a contravention has occurred and if it finds that the conditions for an award of damages have been satisfied, and here they – unlike on internal review – are limited to what you see in subsection (4):

the Tribunal is satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the conduct –

So, two elements, a causative element and a quality of harm element. We would say if all of those things were satisfied, there is no discretion to refuse damages. It might be a different situation if the Tribunal finds the person has already been compensated. So, really, the concern is double compensation or really no harm left to be compensated, but, subject to that, we would say “may” becomes a must.

GAGELER CJ: But, surely, paragraph (e) indicates that the Tribunal could consider some other remedial action appropriate to address the loss or damage.

MR FREE: Certainly, your Honour. We do not submit that.

BEECH‑JONES J: You would say the Tribunal could not reason this was a relatively minor breach that was inadvertent and has now been corrected, and even though they have suffered loss and damage, I am not going to award compensation. So, that reasoning would be impermissible.

MR FREE: That is right, your Honour. That would be our submission if the finding is, whatever its quality, there has been a contravention, it has caused loss or damage of this particular kind which has otherwise not been compensated. We would say it would be a wrong exercise of discretion to refuse relief.

We would urge, though, that that is not essential to our argument of characterisation that the exercise I have just taken the Court through demonstrates the fundamental elements of an exercise of judicial power, with or without the damages being at the end of that exercise of power.

EDELMAN J: Just to trace that back, then, the internal review might find, for example, that there has been a contravention leading to, let us say, psychological harm, and might make an order under 53(7)(b), for example, for a formal apology with no further compensation that is required. The Tribunal then hears the matter, reaches the same conclusion that there is psychological harm that has been suffered, and even if it forms the view that, in its discretion, it thinks genuine apology is enough to redress the psychological harm, it is still required to make an order of damages under (2)(a).

MR FREE: Can I just draw out a couple of elements in that, your Honour. Firstly, with respect, it is in the nature of the internal review process that the agency would not be ordering anything – the agency is just determining what it is going to do or not do. It has a quite different character in that respect.

If it in fact – and this comes to a question I think your Honour the Chief Justice asked earlier about the status of these things if the matter goes to external review – in our submission, they have no particular legal significance; they are not orders apt to be stayed or ceasing effect. They are proposed actions by the agency, they might have already occurred, they might be yet to occur, and the agency might decide to still go ahead with them or not go ahead with them. That is what we would say about what survives the application to the Tribunal, reflecting the fact that the agency on internal review is just really determining, we have conducted a review, we have the findings, we have a report, now what are we going to do about it?

EDELMAN J: And they give a formal apology.

MR FREE: Yes. If, as your Honour has put it to me, the Tribunal concluded that the apology was effective to effectively compensate for – because of the nature of the psychological harm – the harm which has been suffered in a way that monetary compensation would not add to. That might be akin to saying it has already been compensated, it does not need an award of damages. That would be a rubric we would say to put that in.

GLEESON J: What is the scope of the power to decide not to take any action in the matter?

MR FREE: Certainly, if one finds there is no contravention – assuming if there is a contravention and assuming that the applicant has not demonstrated, or the Tribunal has not found psychological harm, financial loss, et cetera, so it just otherwise does not enliven the damages power in particular, it is just a contravention has been found to occur – then we would say the discretion is more at large as to what, if any, response is necessary. It may be that the Tribunal’s practices have already changed, so there is no need to make an order directing the Tribunal to stop doing something. It may be that an apology would serve no purpose, et cetera.

It is not impossible to imagine circumstances where a contravention might occur, or be found to have occurred, but no, the Tribunal determines there is no necessary remedy. We would say the existence of discretion when it comes to a remedy is certainly not inconsistent with this being judicial power. Many traditional exercises of judicial power, including of course in this closely related context of judicial review, are discretionary in character.

Thus far we focused on the PPIP Act and really demonstrated that if one analyses the nature of the review here, the character of it as judicial power is really quite straightforward. Against that, our learned friends rely on the interaction between the ADR Act and this Act to suggest that the review is appropriately described as merits review.

GAGELER CJ: But they also rely on section 69 of this Act.

MR FREE: Yes, your Honour. I should deal with that directly, your Honour. I apologise for overlooking that. The short point on 69, your Honours – and this is really a variation on the distinction I drew between section 33, privacy management plans, and the other normative rules – section 69(1) would certainly have the effect that nothing in relation to section 33 and privacy management plans give rise to any legal rights or create any legal rights that did not exist before this Act or, effectively, the decisions. The exception – the provision in subsection (2) that:

Subsection (1) is subject to sections 21 and 32.

Is all‑important, because those are the provisions which I have taken you to which clearly impose a legal duty to comply with the particular sets of norms, IPPs and codes of conduct which put them in a different category, and reading subsection (1) and (2) together, acknowledges what you would otherwise read these provisions as doing. That is, that they do give rise to legal rights and obligations that did not exist before this legislation.

GAGELER CJ: It is put against you that the juxtaposition of subsections (1) and (2) make clear that the duty that is imposed on the public service agency has, as its corollary, a very, very limited right, and the right can be described as a right to invoke the procedure in Part 5 and nothing more.

MR FREE: Even taking that submission at its highest, in our submission, would not deny the creation of rights and obligations of a kind that, when determined by the Tribunal, with all the other indicia I will come to, involves an exercise of judicial power. So, there is a focus our learned friends have on rights. We would say, as the authorities make clear, one also needs to look at legal obligations. The legal obligations imposed on agencies could not be clearer, and they are imposed, in particular, by section 21 and section 32.

What our learned friends are observing about the nature of the right to complain is that the right of the complainant is to seek redress through the particular ways in Part 5. That includes a tribunal process. The fact that one only gets to the Tribunal going via the internal review stage first does not lead to any different conclusion. An Act which creates new statutory obligations and also creates a mechanism for the enforcement of those obligations can still confer on a body – either a new body or an existing body – judicial power. So, we would say it is really no answer.

I am grateful to your Honour for reminding me of section 69. If I could then turn to the ADR Act and the way in which the machinery provisions of administrative review – in particular, in section 63 and section 66 – are picked up and applied to a review under Part 5 of the PPIP Act. The first point we seek to make about the concept of merits review is that the debate may ultimately become just semantics – is this a new form of merits review, or is the concept of merits review or the concept of administrative review broad enough to encompass this, as opposed to more traditional conceptions of merits review?

But we still think it is useful to go to what is ordinarily conceived of as merits review and how these provisions normally operate and how metaphors like “standing in the shoes of” ordinarily work to highlight how very different that is from the Tribunal’s review under Part 5. Can I do that, first, by going, your Honours, to the judgment of this Court in Shi v Immigration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286. It is in volume 6 of the joint book of authorities, at tab 53. This was a case, your Honours may recall, about the AAT and, in particular, the question of whether the AAT, in conducting merits review, was to have regard to fresh material which was not available to the decision‑maker.

In context of that, her Honour Justice Kiefel made, we would respectfully submit, some pertinent observations about how the review structure under the AAT Act – which we would say is relevantly the same as section 63 of the ADR Act – operates. If I can take you to paragraph 134 on page 324 of the report. As we track through these passages, there is really – if I could ask your Honours to recall the three or four critical concepts in section 63 of the ADR Act.

One of them is the notion of determining a correct or preferable, or correct and preferable decision. The other is the notion of the review body being imbued with the same powers and functions as the original decision‑maker. The third is the notion of the review decision taking the place of the decision reviewed and, allied to that, the notion that the power exercised by the reviewer is to affirm, vary, substitute the decision under review.

So, those are the orthodox concepts. They are in the AAT Act and they are in the ADR Act. Her Honour was addressing how they operate. Her Honour there, in 134, refers to section 43 of the AAT Act:

Section 43(1) expresses clearly that the Tribunal may exercise all of the powers and discretions conferred upon the original decision‑maker. The Tribunal has been said to stand in the shoes of the original decision‑maker, for the purpose of its review. In Minister for Immigration and Ethnic Affairs v Pochi Smithers J said that, in reaching a decision on review of a decision of the original decision‑maker, the Tribunal should consider itself as though it were performing the function of that administrator in accordance with the law as it applied to that person. In Liedig v Federal Commissioner of Taxation, Hill J adopted, as applicable to the Tribunal, what Kitto J said of the Taxation Board of Review in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation, namely that its function is “merely to do over again . . . what the Commissioner did in making the assessment”, within the limits of the taxpayer’s objection.

I mentioned earlier the core concept of reconsideration: standing in the shoes of, doing over again what the original decision‑maker did. So, the classic context, of course, is an administrative decision to do or not do something – award or not award a visa, grant or not grant a licence. Her Honour then, dropping down to 140, picks up the concept of merits review:

The term “merits review” does not appear in the AAT Act, although it is often used to explain that the function of the Tribunal extends beyond a review for legal error, to a consideration of the facts and circumstances relevant to the decision. The object of the review undertaken by the Tribunal has been said to be to determine what is the “correct or preferable decision”. “Preferable” is apt to refer to a decision which involves discretionary considerations. A “correct” decision, in the context of review, might be taken to be one rightly made, in the proper sense.

Just pausing there, one of the differences – it is really just a quirk – the AAT uses “correct or preferable”; the State legislation has come to refer to “correct and preferable”. Apparently there was a relevant – there was a 1995 report of the Administrative Review Council which concluded that there might be some misunderstanding that tribunals were making decisions that were preferable but not correct, so it was thought preferable to say “correct and preferable”, thus, unfortunately, losing the thread of the quite distinct meaning of those concepts. In any event ‑ ‑ ‑

GAGELER CJ: There was a big debate about that, at one stage.

MR FREE: I am sorry, your Honour?

GAGELER CJ: There was a big debate about that, at one stage.

MR FREE: Yes, I get the feeling your Honour may have been involved in it.

GAGELER CJ: No, I deny that.

MR FREE: The only other passages we wish to draw attention to, firstly, the end of that paragraph where her Honour quotes Justice Smithers in Collector of Customs v Brian Lawlor:

it is for the Tribunal to determine whether the decision is acceptable, when tested against the requirements of good government. This is because the Tribunal, in essence, is an instrument of government administration.

And, dropping down to 142:

In considering what is the right decision, the Tribunal must address the same question as the original decision‑maker was required to address.

So, that is, we would say, unquestionably the core notion of merits review, and the usual way in which these provisions stand – having all the same functions and powers, determining the correct or preferable decision, standing in the shoes of, effectively, the original decision‑maker – that is the context in which they normally work, that is the context in which the output of the process is logically – because it is a reconsideration of the original decision, it is affirmation, variation, substitution.

And then a provision, like 66(2) of the ADR Act to say, and the decision of the reviewer, if it has varied or substituted the original decision, shall be deemed to be that decision. So that, to come back to your Honour Justice Steward’s question about the utility of that, if you now have a licence when you did not previously have one, or you have a licence on better terms, the legislation is now administered on the basis that you have one.

When you then – and I will just observe, I will not take your Honours to it, but very similar analysis of the AAT’s powers in the Frugtniet v ASIC [2019] HCA 16; 266 CLR 250 at paragraphs 14 and 50 say very much to like effect, analysing the AAT’s powers.

JAGOT J: What paragraph was this, sorry?

MR FREE: Paragraphs 14 and 50. So, to think about scenarios in which review of that kind has occurred, that was the situation, effectively, of the Superannuation Complaints Tribunal in Attorney‑General v Breckler. It was, effectively, stepping into the shoes of the trustee, exercising all the same powers and discretions, making a decision which was in substitution for the trustee. That was not judicial power.

Likewise, we have drawn attention to the decision of the Privy Council in Shell, that with the Taxation Review Board, as the Privy Council described it, was “assimilated to the Commissioner” rather than being assimilated to a court, and that review board operated as a classic merits review board, having all the same characteristics I have just taken you to in Shi, and held not to be judicial power.

Likewise, as your Honours will have seen, the position in New South Wales with GIPA applications, which was the other half of the Court of Appeal’s judgment, there, the Tribunal exercises a more classic merits review: what is the outcome of the application, doing exactly the same thing as the agency did? There are, of course, other reasons why Justice Kirk concluded that that was not an exercise of judicial power, but, structurally, the nature of the review is important.

Then you get to the very different type of review under Part 5, where the Tribunal does not step into the shoes of the agency. It stands apart from the agency, makes findings as to whether the conduct of the agency constituted a contravention, and, if it did, what remedies should follow, and if remedies should follow, they take the form of an order directed to the agency requiring it to do or not do something – fundamentally different from the type of review and the outcome of the type of review I have just taken your Honours to in the AAT merits review context.

GLEESON J: But you do not say that section 63 of the ADR Act does not apply here?

MR FREE: In essence, your Honour, yes. When one comes to consider how does section 63 – which is prima facie a source of powers – map onto this exercise, we would say, in most respects it does not. So, the starting point is it only operates at all through a particular device in section 7 of the ADR Act of defining “decision” to include conduct.

Now, that might have been caught, also – which your Honour the Chief Justice observed – by the more general description of “decision”, but that often is applied to things like failure to make a decision and delay, et cetera. Section 7 here, in any event, put it beyond any doubt that a conduct of an agency is to be treated as a form of decision.

GLEESON J: But section 55(3) expressly deals with section 63 and says that it applies, is that not right?

MR FREE: Well, we would say it certainly does not exclude it, but it leaves to be determined how it applies by saying that nothing in section 55 limits any other powers that the Tribunal has, and we would, with respect, agree with the observation that was made that the word “other” there might be significant, that one needs to understand the powers directly conferred by section 55, particularly in section 55(2). But we would say one needs to then read Division 3 of Part 3 of Chapter 3 to see which provisions of the ADR Act provide relevant powers, if I can put it that way, because if they are irrelevant powers, then they are not applicable, they are not picked up, and they certainly do not change the character of what the Tribunal is doing.

BEECH‑JONES J: Are the powers in 65(3) picked up?

MR FREE: Is that the power to ‑ ‑ ‑

BEECH‑JONES J: Affirm, vary, set aside, substitute.

MR FREE: Well, not in our submission, because the statutory device is to treat the conduct – that is, the conduct said to constitute a contravention of the IPPs – as the decision. Now, unlike an administrative decision – I withdraw that, I will go back a step.

The real‑world example of privacy complaints is much closer to what your Honour Justice Beech‑Jones described earlier, where someone is complaining, you hold all my data on your computer system and your computers have fallen off the back of the truck and someone has been able to get my data, or you have insecure virus protection and hackers were able to get it, or the school wrote a letter to my family in which they disclosed information about my son that they should not have had. Those are the kind of conduct giving rise to contraventions and complaints. They are very far removed from the classic decision made under a decision‑making power which is the subject of complaint.

So, no one is reconsidering, should I write this letter, should I allow my computers to be stored on trucks? Those are basically the historical facts constituting the conduct; it makes no sense to vary that conduct or to affirm that conduct.

GORDON J: But the decision is substituted. The decision of the Tribunal replaces – let us use neutral language for the moment – that which the agency has done, which is what you need 63(3) for.

MR FREE: That, again, we would say does not work in the context of a decision of this kind where the decision being reviewed is the conduct. The Tribunal’s determination takes the form of: has your conduct contravened one of these norms? If so, what should happen? The Tribunal is not saying, we can rewrite history and vary the conduct which occurred. It certainly cannot ‑ ‑ ‑

GORDON J: It might be able to vary the conduct that occurred in the sense that it might be able to bring about a result where a particular principle or a particular provision of the code is actually complied with.

MR FREE: That would be ‑ ‑ ‑

GORDON J: Say, for example – sorry to interrupt, Mr Free – it may be that the agency said, I have heard what you have to say, no, we are not going to do it.

MR FREE: Yes.

GORDON J: That is a decision. And then what has come along, sought review of it, and got a different decision, including a direction from a tribunal that the agency take certain steps.

MR FREE: Analytically, we would say what happens in that scenario is that the conduct has already occurred – which is the agency is not doing something – the Tribunal determines that it is not doing that thing, and that to not do so constitutes a contravention, and the appropriate remedial response is to say you now need to start doing this thing. It cannot, in the equivalent way to varying an administrative decision that has already been made, change an historical fact. So, we would say it is just not engaged in the exercise where it makes sense to affirm, vary ‑ ‑ ‑

EDELMAN J: I mean, even to use your examples, the agency has made a decision to install computers with inadequate virus protection, but an order could be made requiring them to install adequate virus protection.

MR FREE: Yes, but we would say that is not in the same sense as an administrative decision of the usual kind – I accept this is broadly defined – it is not, in the same sense, varying it.

STEWARD J: What about a situation where somebody requests the Department to correct the accuracy of information held about them, the Department refuses, there is internal review, which is unsatisfactory, and then the Tribunal decides that the information is inaccurate and it should be corrected, and then that decision becomes the decision of the Department as at the original date under section 66.

MR FREE: Well, at the last step, your Honour, we would say the way section 55(2) works is it does not work by the Tribunal substituting the decision, it works by the Tribunal ordering the agency to do that thing. That is how the end is achieved. And that is why you do not need this device, and it makes no sense to have this device. It is a different relationship from the classic merits review of standing in the shoes. It is a quasi – it is equivalent to a court externally saying, in response to this wrong which I have found, you must do X.

STEWARD J: Your point might be summarised by saying that the true nature of what the Tribunal is doing here under Part 4 or 5 is, effectively, acting as an appellant overview of internal review.

MR FREE: With respect, we perhaps ‑ ‑ ‑

STEWARD J: That might be putting it too strongly. I do not know.

MR FREE: I think the difficulty with that description would be the appellant aspect because as we ‑ ‑ ‑

STEWARD J: Oversight, then.

MR FREE: Yes. But it is not an oversight of the internal review, per se.

STEWARD J: No, the original contravention.

MR FREE: Of the conduct, indeed.

STEWARD J: And then providing remedies by reference to that historical contravention.

MR FREE: That is right.

STEWARD J: Yes.

EDELMAN J: I am not sure, even in the really classical instances of what you might call “merits review” and what you might call “judicial orders”, there is really such an obvious distinction. Some of the most classic judicial orders are, in effect, orders in substitution for conduct that has occurred or decisions that have been made – specific performance, order for payments of a debt, and so on. You can talk about it as orders that are made separately by a court for a wrong which are enforceable, and so on, but it is very, very comfortable, also, to talk about it as orders that are substituting for what ought to have occurred.

MR FREE: If I could take up your Honour’s example of an order for specific performance, a compulsory order issued to a party to say, you must do X, the fact that it takes that form reflects the fact that the court itself does not have the power legally to bring X about. It has identified that the legal outcome should be that X must happen. Its mechanism for achieving that is to issue an order: you must do X. That might not be complied with. It might be contempt of that – whatever. But the fundamental difference is, in a merits review jurisdiction because of this usual arrangement, the AAT stands in the shoes of the decision‑maker and says, I have now worked out X is the correct decision, and I have the power to declare that the correct decision is X, and it takes immediate legal effect.

That is why the distinction his Honour Justice Kirk, drew is, with respect, important and why, when we come to the mapping‑on of these concepts from the ADR Act, there are either wholly inapplicable or they require such a different type of application as to really not be an answer to the substantive point. The same goes with the correct and preferable.

GORDON J: Just so I am clear, does that mean if we just take Division 3, you would have us read “correct and preferable” in a different way to that which the other authorities you have taken us to read it?

MR FREE: Yes, your Honour.

GORDON J: And then, second, you would have us put to one side section 63(3)?

MR FREE: Yes, your Honour.

GORDON J: What do I do about subsection (2)?

MR FREE: Well, your Honour, coming back to “correct and preferable”, our primary submission would be to say, because of the understanding of the concept of “correct and preferable” enacted in this provision, and its inapplicability to this situation – so, to read that phrase, one really has to read “decision” as conduct, and it is saying the Tribunal is to decide what is the correct and preferable conduct. We would say that is just completely inapt to describe what the Tribunal is doing.

STEWARD J: Well, you might be stronger. You might be saying that standard of correctness and preferability is: was there an historical contravention and what remedy must flow.

MR FREE: That is the other way of reading it. That in the context of a Part 5 review, it can still mean something. It means something quite different from what it usually means in merits review, but then, on that reading – to come to your Honour Justice Gordon’s question about subsection (2) – subsection (2) is only engaged for this purpose. So, it is only engaged if one is doing what is the correct and preferable exercise.

GORDON J: That is why I am asking. You would put to one side, entirely, section 63.

MR FREE: That is our primary submission.

GORDON J: And 64?

MR FREE: Section 64, we would say, can have application, because there may be circumstances where the power in – so, subsection (1) is a duty of particular types of government policy. Subsection (4) is a power to:

have regard to any other policy applied by the administrator –

Now, the administrator, we would respectfully submit, is being defined in section 8 as:

in relation to an administratively reviewable decision, is the person or body that makes . . . the decision under enabling legislation.

So, obviously its core application is decision‑making power of the more orthodox kind. But here, applied to this concept of “conduct”, it must be the person who engaged in the conduct. Not the person doing the internal review, it must be the person who engaged in the conduct.

It is conceivable that if the person who engaged in conduct – say, designing the IT system – had regard to a policy, that might be relevant to the Tribunal’s exercise of applying the standards. So, we accept that aspects of 64 would be applicable.

GORDON J: Just to complete the exercise, does that mean that, as I understand it, 65 is engaged as well, in the way you have described earlier? I am trying to work out what the powers are, because this section is headed “Powers on administrative review”.

MR FREE: Yes, your Honour.

GORDON J: We know that nothing in section 55(3) of the PPIP Act limits any other powers, and I am trying to work out what is left.

MR FREE: Yes. Well, in our submission, 65 would not ‑ ‑ ‑

GORDON J: Be engaged?

MR FREE: ‑ ‑ ‑ be engaged, because that is really building on the notion of varying, set aside ‑ ‑ ‑

GORDON J: And nor would 66?

MR FREE: Well, subsection (1) would apply. So, that would effectively mean the Tribunal’s decision takes effect on that day.

GORDON J: Thank you.

MR FREE: Subsection (2) would not, in my submission – just to complete the exercise – because that is only:

If any such decision varies, or is made in substitution for –

GORDON J: Thank you. Sorry, Justice Beech‑Jones.

BEECH‑JONES J: So, this lack of engagement, starting with 63 – I am a bit slow on the uptake – that engages because, effectively, what you are seeking review of under the PPIP Act is conduct, and the principles which talk about “use” and so forth are not really talking about decisions in the classic sense at all.

MR FREE: That is right.

BEECH‑JONES J: That is where we get to?

MR FREE: That is right.

GLEESON J: And can I just clarify – so, then, what you say is section 55(3) in the PPIP Act only applies to pick up section 64(4), because the other provisions that you say apply are not powers.

MR FREE: Yes. Perhaps not itself picks up, but that subsection 55(3) really compels the kind of exercise I just developed with your Honours to try and reconcile the relevant sources of power.

STEWARD J: Can I ask you a slightly different question, and you can think about the answer. What are we to do about the nomenclature that is being used in these Acts? The repeated references to “administratively reviewable decision” – a good example is section 9 of the ADR Act, which tells the Tribunal when it has power:

The Tribunal has administrative review jurisdiction over a decision . . . of an administrator if enabling legislation provides that applications may be made . . . for an administrative review –

This word keeps on popping it up. Is it of relevance, is it just labels?

MR FREE: Well, it is certainly not irrelevant, your Honour, because it reflects a scheme whereby – and her Honour Justice Gleeson’s question about section 55(3) highlights it – a scheme where, for the purposes of Tribunal review under section 55, the choice has been made to pick up this existing machinery in relation to administrative review.

STEWARD J: It is just that the PPIP Act also talks about – 55 – “for an administrative review”.

MR FREE: Yes, and that is what makes it an administrative review of the kind ‑ ‑ ‑

STEWARD J: Is that just described so that it marries up the language, is it?

MR FREE: Well, that is necessary under section 9 of the ADR Act, because that is the enabling legislation, i.e., the PPIP Act providing that applications may be made for administrative review. But as a label, we would say it does not tell you that the review is administrative in the sense of being non‑judicial. One needs to scrutinise what is exactly involved in the review. My learned junior reminds me that one also needs to add to the jigsaw, section 30 of the Civil and Administrative Tribunal Act, and subsection (2)(b) is the critical one:

The Tribunal also has the following jurisdiction in proceedings for the exercise of its administrative review jurisdiction—

. . .

(b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act, the Administrative Decisions Review Act 1997 or enabling legislation in connection with the conduct or resolution of such proceedings.

So, that is what sends you also to the PPIP Act as being a source of functions for the conduct of that administrative review.

STEWARD J: Could I ask you another slightly left of centre question. How does the NCAT’s power to order contempt in section 73 bear upon these issues? Is it: helps no one?

MR FREE: Only in this way, your Honour. It is one of a number of provisions that reflect the fact that an order, when made by the Tribunal, is binding and one of the responses to that is failure to comply with an order may constitute contempt. It may also constitute a civil penalty provision. So, we do not rely on it as an enforcement mechanism akin to Brandy. It is more to be consistent with what one would otherwise get from the language of 55. An order is immediately legally binding.

And to cut to that point, Citta tells us that that is the critical thing when it comes to the analysis of judicial power. It is the binding nature – and the words used in Citta are “required to be complied with” – orders are required to be complied with. And there is no doubt that orders of the Tribunal made under section 55 of the PPIP Act have that character, we would say, and the fact that failure to comply with them might lead to contempt or civil penalty proceedings reinforces that.

BEECH-JONES J: Is that dependent on your focus on section 78, or something else?

MR FREE: It is not dependent on that, your Honour. We would say, independent of section 78, all orders made under 55 – remembering that 78 is only picking up money orders, orders to pay an amount of money, so that is only going to be relevant to a damages award, so we certainly do say that is relevant, but even without it, all other orders are immediately compulsive in nature. You get that from the clear terms of 55(2), “an order requiring” that things be done. Nothing more needs to happen for them to become legally binding. The complete ‑ ‑ ‑

GAGELER CJ: You would say that the order could be enforced by an order in the nature of mandamus made by the Supreme Court?

MR FREE: We do, your Honour. We do. As far as damages are concerned, could I take your Honours, in that context, to the Civil Proceedings Act, which has some significance in this regard, and we failed to refer to it in our written submissions. I will just pick out the reference, your Honours.

JAGOT J: Will you address 73 in that context? How you get from 55(2), being an order requiring something, you have 72, which only relates to designated orders which are confined, making it an offence, and then you have 73, which – leaving aside mandamus or some civil remedy, I assume you are saying that it would be a contempt under 73?

MR FREE: Yes, your Honour. In 72, it is subsection (3), which is not limited to designated orders.

JAGOT J: Yes, okay.

MR FREE: So, that is the civil penalty.

BEECH‑JONES J: So, what is the contempt power? Which power would be used for failure to comply with an order?

MR FREE: Section 73, your Honour.

BEECH‑JONES J: Which one?

MR FREE: Section 73(2).

JAGOT J: I mean, normally you would have to serve an order – say, of a court – to make sure and draw the person’s attention to it. Are you saying that is all bypassed, so that – I mean, normally, the mere making of the order is not – you have to prove service, that it was drawn to the attention of the person, all those steps, before you can enforce. How does this all fit?

MR FREE: Those kinds of procedural preconditions, particularly for a contempt proceeding, I do not suggest are done away with, but they do not require a further exercise of power by someone – in particular, a court – in order to make those orders binding. So, we accept that there might be procedural prerequisites of that kind for contempt.

BEECH‑JONES J: Mr Free, in the more standard administrative view type, presumably freedom of information, it comes up under externally reviewable administrative decisions. Is the usual statutory mechanism simply to say the Tribunal stands in the shoes of the administrator and otherwise be silent as to the orders or powers it can make?

MR FREE: No, your Honour. That would normally take the form of: the Tribunal at the conclusion of its review affirms the decision under review, in which case nothing changes, or the Tribunal sets aside the decision under review and in its place substitutes the following decision.

BEECH‑JONES J: But it does not usually make provision for an order that could engage those provisions we just looked at.

MR FREE: No, your Honour, not sort of directing that things be done, in my experience. It would not be necessary because in that situation it is immediately effective effectively as the supplanting the decision of the department or the decision‑maker.

Your Honours, if I just could take you to the Crown Proceedings Act. It is in the supplementary joint book of authorities volume 2. Using the red numbering at the top, it is at page 608, your Honours, of that collection. There is just a nuance when it comes to execution against the Crown which we need to introduce, and it has some connection with your Honour the presiding judge’s question about mandamus. The background – and I am directing attention to section 7 of the Crown Proceedings Act.

GAGELER CJ: Do you know what tab it is?

BEECH‑JONES J: Tab 11.

MR FREE: I am sorry, your Honours. Tab 11, I am told. If there is red numbering on the top, it is page 608.

GAGELER CJ: I think we are there.

MR FREE: Your Honours, the background to section 7, as your Honours probably would be aware, is the Crown ordinary has an immunity from execution against Crown property. That is effectively preserved in 7(2):

Execution, attachment or similar process shall not be issued out of any court against the Crown or any property of the Crown.

So, we have to accept, even if 78 is engaged so that a money order could become enforceable under a court order, that would be limited in its effectiveness by 7(2). Importantly, though, 7(1) provides that:

The Treasurer shall pay . . . all money payable by the Crown under any judgment, including any interest, except to the extent that the money is paid by some –

other person. So, that is one practical benefit of registration that would enliven mandamus potentially against the Treasurer, if the Treasurer failed to pay where the relevant agency was part of the Crown, in the Crown Proceedings Act. So, it is a nuance to the argument about enforceability that we wish to draw to the Court’s attention.

Otherwise, we would say, applying the concepts in Citta, nothing more needs to happen for the orders of the Tribunal to be relevantly binding. The observation which our learned friends make, echoing something that the High Court said in Brandy, that one would expect public sector agencies to comply with orders without the need for enforceability, does not detract from the point. It may mean that the whole debate about enforceability when it comes to public sector agencies in a regime like the PPIP Act is entirely abstract and irrelevant; a binding order will be complied with. That strengthens, we would say, rather than undermines our submission.

Your Honours, in the interests of time, I will not go through the detail of it, but we have included in our written outline the various provisions of the Civil and Administrative Tribunal Act – this is paragraph 11 of our written outline, handed up today – which govern the powers and procedures of the Tribunal.

We certainly do not submit that every power the Tribunal exercises is, by virtue of that process and those powers, judicial, but what those powers go to – and they are things that deal with power to summon witnesses, take evidence on oath, references to proceedings and parties to the proceedings, the conduct of the Tribunal’s jurisdiction being subject to rules of practice which are produced by a rule committee of which the president, who is a Supreme Court judge, must be a member. Many of the trappings of behaviour like a court and consistent with the adjudicative character of review of this kind, we would say, are established by that legislation. We acknowledge, of course, that there are qualifications to that, so, in section 38:

The Tribunal is not bound by the rules of evidence and may inquire . . . in such a manner as it thinks fit –

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 –

So, it is certainly not like a court in every respect, but in many significant respects and, importantly, in a very different way from the Privacy Commissioner and the internal review process.

STEWARD J: That may not advance matters greatly, because, of course, the AAT did and the ART now does have the same sort of powers.

MR FREE: I accept that, your Honour, which is part of why we accept although those provisions govern all of the jurisdictions of the Tribunal, we accept that certain parts of the jurisdiction are plainly non‑judicial, but when one is balancing the multifactorial exercise, the process of decision‑making having elements of a judicial process is a relevant factor.

Just on that, your Honours, because it is a convenient point to make this observation, the debate about how Justice Kirk’s reasons should be construed and whether his Honour was purporting to say that registration alone made this exercise judicial, we would say, read fairly, his Honour was applying in a perfectly conventional way the settled approach of identifying all of the characteristics of the process – the rights at issue, the nature of the decision‑maker, et cetera – and pointing to the factors going each way, and when his Honour made the observation that the registration element, when it came to damages, was decisive, we would say that is to be understood as tipping the balance or being – to pick up your Honour Justice Edelman – to raise the tie breaker that made the conclusion what it is. So, one would not – and I do not think anyone at the Bar table is suggesting that one would in fact read his Honour’s reasons as being isolated from all of the other characteristics of the power that his Honour analysed.

Your Honours, I have addressed the normative nature of the basic rules governing this conduct, the IPPs and codes of practice. We would also make the observation that the specific criteria governing an award of damages are also in the nature of legal preconditions which the Tribunal has to consider and be satisfied of, and quite familiar to judicial exercises of a power as preconditions to compensatory awards, so, reinforcing the nature of this as an exercise of applying found facts to existing legal rules.

His Honour was, in that regard, also right in identifying the factors pointing to an exercise of judicial power that an award of damages is an exercise characteristically performed by courts where, as here, it is a response to a legal wrong. It is not discretionary or at large, isolated from a finding of a legal wrong.

I have addressed your Honours already, to a large extent, on the question of the binding character of a determination of the Tribunal. We call in aid, in that context, the statement from R v Davison [1954] HCA 46; 90 CLR 353 which was, in turn, a quote from Justice Holmes in Prentis v Atlantic Coast Line Co in the United States Supreme Court, in which, I think, each of the judgments in Citta referred to – that is, the notion that the final act determines the nature of the previous inquiry. Here, the relevant final act, we would say, is a binding determination of whether a contravention has occurred and, if so, what must happen by way of an order directed an agency. That informs the judicial character of the exercise the Tribunal has performed to reach that point.

The contrast with Brandy, of course, is that in Brandy there was an express provision to the effect that a determination did not become binding and did not impose obligations. Section 25Z of the legislation and the critical point, as their Honours observed in the High Court, was that the enforcement regime effectively reversed what was otherwise the non‑binding nature of it. So, there, the questions of enforcement and binding effectively merged because the enforcement mechanism not only facilitated enforcement but actually converted what was otherwise non‑binding into a binding decision.

That, we would say, is the classic hallmark of judicial power. The way it is described in Citta Hobart v Cawthorn, we would say, does not point to any requirement beyond a legal position where the person subject to the order is bound or required to comply with it – and that is the position under the PPIP Act.

Can I just, in that context, go briefly to Brandy. Your Honour Justice Gordon asked our learned friend about the final paragraph on page 269 in Brandy. Does your Honour have that? We would say the significance of that is, when you read it with the paragraphs which precede it, their Honours – this is Justices Deane, Dawson, Gaudron and McHugh – making the observation at about point 3 that there were many of the positive elements of an exercise of judicial power present:

decides controversies between parties and does so by the determination of rights and duties based upon existing facts and the law as set out in Part II of the Racial Discrimination Act. Indeed, the relevant function of the Commission is essentially to determine whether the provisions of ss 9 and 15, which prohibit certain kinds of racial discrimination, have been contravened.

Pausing there, we would say that is entirely on all fours with our statute. They go on to say, after quoting Justice Starke:

Moreover, the remedies which the Commission may award include damages as well as declaratory or injunctive relief and, according to whether they may be viewed as punitive or otherwise, make its functions closely analogous to those of a court in deciding criminal or civil cases.

And what they then go on to say in the final paragraph is:

if it were not for the provisions providing for the registration and enforcement . . . it would be plain that the Commission does not exercise judicial power. That is because, under s 25Z(2), its determination would not be binding or conclusive –

So, we would say the way to read all that is certainly not that enforcement is essential, but that all of the positive elements pointing to the conclusion of judicial power would not have been sufficient if the outcome was not binding or conclusive. Here, that position was reversed by the enforcement provisions. That, we would say, is entirely consistent with the result reached in Citta, and why – and coming back to the answer I gave your Honour Justice Beech‑Jones – the case does not turn on section 78 being engaged.

But, against that, can we address briefly why we say 78 is engaged. If I could ask your Honours just to turn that up, it is 78 of the Civil and Administrative Tribunal Act, subsection (1):

For the purposes of the recovery of any amount ordered to be paid by the Tribunal (including costs, but not including a civil or other penalty), the amount is to be certified by a registrar.

So, the words are plainly apt to describe an order issued by the Tribunal under section 55(2) for the payment of damages. Our learned friends’ first answer to that is to say, because of section 66 of the ADR, the Tribunal’s decision is in fact deemed to be a decision of the administrator.

Our primary answer to that is, for the reasons we have developed, section 66(2) does not have that operation in the context of a tribunal decision, but even if it did, in our submission, the fact that is deemed to be a decision of the administrator does not mean it loses its character as an order of the Tribunal, and it would obviously frustrate the intention of the legislature if, because of that deeming provision, one could not get the benefit of enforcement of a tribunal order specifically for the payment of damages.

STEWARD J: You would have us read it to be a reference to an historical fact that has happened? Namely, there has been an order.

MR FREE: Is your Honour referring to section 78(1)?

STEWARD J: Yes.

MR FREE: Yes, so, once the Tribunal has made such an order – so, in this case, if it makes an order for damages under 55(2) – then the machinery in 78 is enlivened. As to the problem of some public sector agencies not being persons, our learned friends draw attention to the fact that these enforcement provisions have to be directed to a person. We would say that the answer to that is that all such agencies will either be persons in their own right or otherwise have to be identifiable, in one way or another, as either emanations of the State – and, therefore, the State will be the relevant person – or the person otherwise responsible for the conduct.

But it is not the case that you can – whatever the difficulty of identifying who the particular person is in any given case, in terms of their relationship to the Crown, it is never going to be the case that you have no person on the receiving end of one of these orders. The other submission made against us, I think, is that it is incoherent for the legislature to have chosen to make the monetary awards enforceable by this particular process when other awards are not.

We would say nothing incoherent and certainly nothing unclear about it. The legislature has chosen to create this mechanism for enforcement of only a particular type of order, and it is not unfamiliar to the law to have particular provisions dealing with money awards and things being treated as judgment debts and the like. So, not remarkable, in our view, and certainly not a reason to read down 78.

Your Honours, I mentioned earlier the position under the Privacy Act (Cth). We have provided to your Honours this morning – and I hope they have reached you – relevant extracts from the Privacy Act (Cth). I will just step through the way it works, and I think it was foreshadowed in some of my learned friends’ submissions earlier. Essentially, a complaint that there has been an interference with the privacy of an individual has to go to the Privacy Commissioner before it can get to court. So, that concept of interference – I am sorry, were there any of your Honours who did not have the relevant provisions of the Privacy Act?

GAGELER CJ: I do not have them in front of me, but it should not stop you from proceeding with your submissions.

MR FREE: Thank you, your Honour. Section 13 of the Privacy Act defines the concept of an “interference with the privacy of an individual”, and that is where:

An act or practice of an APP entity –

I will take you to the definition of that in a moment:

is an interference with the privacy of an individual if:

(a) the act or practice breaches an Australian Privacy Principle in relation to personal information about the individual; or

(b) the act or practice breaches a registered APP code –

so, your Honours will recognise quite similar concepts ‑ ‑ ‑

GAGELER CJ: What is an APP entity?

MR FREE: It is defined in section 6, your Honour, and for those of your Honours who have the – your Honours, I do have paper copies if it would assist.

GAGELER CJ: Yes, it would, I think, Mr Free, if you want us to look at it. Thank you.

MR FREE: So, your Honours, I started by reading from section 13, which is on the sixth page of the extract we have handed up, which defines what an “interference with the privacy of an individual” is. That refers to “an APP entity”, and your Honour the Chief Justice asked me where that is defined. That is on the third page, in section 6:

APP entity means an agency or organisation.

Now, “agency” is defined also in section 6, back on the first page, various governmental bodies, Minister, Department, et cetera; “organisation” is defined separately, in section 6C, which is on page 5 of the hand‑up:

organisation means:

(a) an individual; or

(b) a body corporate; or

(c) a partnership; or

(d) any other unincorporated association; or

(e) a trust;

that is not a small business operator, a registered political party, an agency, a State or Territory authority or a prescribed instrumentality –

So, that is broadly defined. I think there is a separate provision, which we have not given your Honours, which excludes household and domestic activity, so it essentially has to be business activities of organisations. So, all of those types of entities and individuals are subject to the APP requirement.

If you go to page 8 of the bundle, section 52 deals with determination of a complaint. The outcome of a determination, if it is not dismissed, you will see in 52(1):

the Commissioner may:

. . .

(b) find the complaint substantiated and make a determination that includes one or more of the following:

There is “a declaration” as to various matters. It can include, if you go to (b)(iii):

a declaration that the complainant is entitled to a specified amount by way of compensation for any loss or damage suffered by reason of the act or practice –

et cetera. But then, if one drops down a couple of pages to (1B), we see that:

A determination of the Commissioner under subsection (1) or (1A) is not binding or conclusive between any of the parties to the determination.

So, it is more like the Brandy model. And then enforcement, which is dealt with from section 54 on page 12:

(1) This Division applies to a determination made under section 52 after the commencement of this Division –

But not “agency”, not in respect of “agency”. And, in 55A, which is over the page, the Commissioner or a complainant can:

commence proceedings in the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order to enforce a determination –

And although it is called enforcing a determination, and although the Commissioner has made a declaration that someone is entitled to something, you see from subsections (2) and (5) that, in fact, the court’s role is to conduct a de novo review. So:

(2) If the court is satisfied that the person or entity in relation to which the determination applies has engaged in conduct that constitutes an interference with the privacy of an individual, the court may make such orders (including a declaration of right) as it thinks fit.

. . .

(5) The court is to deal by way of a hearing de novo with the question whether the person or entity in relation to which the determination applies has engaged in conduct that constitutes an interference –

And in terms of the principles themselves – we have included, over on page 15 – they are in the Schedule to the Act. Relevantly, clause 10 of Schedule 1:

Australian Privacy Principle 10—quality of personal information –

and you will see, there, 10.2:

An APP entity must take such steps (if any) as are reasonable in the circumstances to ensure that the personal information that the entity uses or discloses is, having regard to the purpose of the use or disclosure, accurate, up‑to‑date, complete and relevant.

Not identical in every word with section 16 of the PPIP Act, but very similar.

GAGELER CJ: Mr Free, is there any mechanism for enforcement of a determination against an agency?

MR FREE: I do not believe so, your Honour, but I will need to check that. I will have Ms Heger assist me in that regard, but I do not believe so. So, your Honours, obviously we do not want to turn this into a satellite case about whether the Commonwealth has conferred non‑judicial power on the Federal Court, but we do say that it is consistent with our submission that the very standards or principles that are given legal effect for public sector agencies in New South Wales, are no more amorphous or evaluative in character from those which are imposed on APP entities and the subject of judicial determination under the Privacy Act.

If I could take you in that regard, also, to Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307, which is in volume 7 of the joint book of authorities, tab 58. Your Honours will be familiar with the context, but a similar issue there arose as to whether, in relation to the making of interim control orders, the standards or prerequisites required to be met were so vague or imprecise as to be unsuitable for an exercise of judicial power.

That argument was rejected, and his Honour Chief Justice Gleeson, from paragraph 20 and following, undertook an exhaustive analysis of the expression “reasonably necessary”, which had been the subject of debate and some criticism of the provisions at issue. His Honour from paragraph 20 and following deals with all the ways in which well‑established judicially applied doctrines turned on the concept of “reasonably necessary”. So:

in the common law doctrine of restraint of trade.

The:

lawful justification for inducing a breach of contract –

Reasonable necessity is a:

criterion of validity of legislation.

Reasonable necessity as an aspect of:

The grant of an easement –

and understanding the scope of an easement. It is illustrative, we would say, of the error of taking standards such as those contained in the IPPs and seeking to characterise them as evaluative or amorphous in a way that suggests they are not of the kind of – they are not rules or principles of a kind that can be or are routinely applied by the courts.

Given the proliferation of statutes and the extent to which courts routinely apply statutes containing phrases of this kind, we would say there is nothing in that and, with respect, his Honour Justice Kirk, in listing certain factors which told against a finding of judicial power, was wrong to attach any weight to the notion that there was something distinctly “evaluative” or “amorphous” about the standards in the PPIP Act. We would say, properly scrutinised, they are not of that – there is nothing distinctive about them in that respect.

Likewise, your Honours, his Honour considered that the fact that the PPIP Act operated in the context of government administration and that the norms applied only to government agencies was suggestive of non‑judicial power. We would again respectfully suggest that that is not a matter of much, if any, weight. There is nothing about the content of the norms themselves that makes them inapplicable beyond a government context, and we can see that from the Privacy Act (Cth) as well.

But, in any event, many well‑established legal norms are confined in their application to exercise of public power and government authorities. Judicial review most classically, but also the enforcement of many statutes which are necessarily confined in their application to particular governmental contexts. For example, police powers; relatedly, torts, which are limited in their application to particular governmental or exercises of public power contexts, like misfeasance in public office; nowadays, malicious prosecution having a purely public – or at least largely public – operation.

His Honour also suggested that the applicability of government policy by the Tribunal, or the fact that the Tribunal in some circumstances must, and in other circumstances may, apply government policy was a factor telling against a finding of judicial power. Again, that is not a matter, we would say, to be given much, if any, weight. I will not take you back to it, but in Thomas v Mowbray at paragraphs 80 and following, their Honours Justices Gummow and Crennan explained why many exercises of judicial power routinely have regard to policy considerations, and there is nothing alien to the judicial process in that.

We also emphasise that any policy that is going to be appliable under the ADR Act section 64 is really in a quite narrow compass, and this comes back to the exchange I had with your Honour Justice Gordon. It is only policies of a particular kind that are picked up by section 64. The government policy category, which are only Cabinet or premier or ministerial polices, are confined to those:

applied in the exercise of discretionary powers by administrators.

So, it would only be where there is a particular connection between the conduct under review and a discretionary power governed by policy of that kind. I addressed your Honour earlier on 64(4); that only picks up policy that was in fact applied by the administrator. That is, the person who carried out the conduct at the time of conduct. So, the statute in contemplating the application of policy does so only in a very narrow way.

EDELMAN J: It does so in a way that is very different, though, from the way in which policy can play a role in the usual course of judicial determinations, which is it is put in section 64 at the forefront, rather than at the periphery.

MR FREE: I accept, your Honour, that that gives it a different context and a different application. Nevertheless, we would say the role of policy in traditional exercise of judicial power signals that it is not a strong factor suggestive of non‑judicial power, even when one is applying it in this particular way.

Where it has proved of more significance is in cases like Precision Data Holdings, where the context for the application of policy is an extremely broad evaluation of an administrative nature about whether circumstances are unacceptable for a merger and the like. So, there is a merging of a very broad discretion not applying legal norms of this kind with having regard to broad policy public interest considerations. That is where it can, in our submission, acquire more force.

Your Honours, I have addressed largely on the question of discretionary nature of relief, particularly in the context of damages, and addressed your Honours on the way in which discretion can feature in the Court’s determination of relief under section 55(2). The only thing we need add to that is just reminding your Honours that the exercise of discretion in determining relief, including determining whether prerogative relief should be granted in judicial review, is long‑established and certainly not inconsistent with the judicial function, or indicative of a non‑judicial power, I should say.

Your Honours, I can then turn finally to the question of a Chapter III matter, and we can be very brief on this front. In our submission, if your Honours are with us in the submissions we made so far about the nature of the rights at issue and the nature of the obligations created by the PPIP Act and the way in which the Tribunal exercises its function, it will follow inevitably that there is a Chapter III matter. There is a controversy ‑ ‑ ‑

STEWARD J: Is that because Part 5 requires that there be a person aggrieved with conduct?

MR FREE: Yes, your Honour, we have, as a necessary predicate to application for review, a person who is aggrieved by conduct, aggrieved by what the agency has proposed to do about it, so there is by definition a controversy between the agency and the individual. What is the subject matter of that controversy? It is the contravention of legal norms imposed by the PPIP Act, and we would respectfully say that nothing more is
required to establish a Chapter III matter. If your Honours have concluded that that is not a controversy about rights, duties or liabilities to be established, then by definition, you will have found it is not an exercise of judicial power. So, that is why we do not think there is any gap left to fall through at that stage, your Honours.

If your Honours bear with me a moment. I think to answer your Honour the Chief Justice’s question about how the ADR Act ordinarily applies to either the internal review decision or the original decision, I think it will depend upon the enabling legislation in any given case, so that the ADR Act concept will just pick up whether the relevant enabling legislation enables you to review straight from the original decision or from the internal review one – so it can be either.

In answer to your Honour’s question about enforcement against agencies, there is provision in section 62 of the Privacy Act to seek an order that an agency comply with a determination.

GLEESON J: Just going back to your first response to the Chief Justice’s question, does that – is that based on sections 53(5) and (5A) of the ADR Act?

MR FREE: Would your Honour bear with me a moment? I think that is right, your Honour. I am just looking for the definitional provision.

GLEESON J: It looks quite different from the internal review process in the PPIP Act.

MR FREE: It certainly is, your Honour. Yes. So, the definition of “administratively reviewable decision” in section 7 is:

a decision of an administrator over which the Tribunal has administrative review jurisdiction.”

Which is, I think, then why – it is how the enabling legislation describes that jurisdiction gives the answer. If the Court pleases, those are our submissions.

GAGELER CJ: Thank you, Mr Free. We will commence with your submissions tomorrow morning, Mr Solicitor. The Court will now adjourn until 10.00 am tomorrow.

AT 4.09 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 6 FEBRUARY 2025