State of New South Wales v Wojciechowska & Ors [2025] HCATrans 4 (6 February 2025)

Last Updated: 6 February 2025

[2025] HCATrans 004

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 THURSDAY, 6 FEBRUARY 2025, AT 9.59 AM

(Continued from 5/2/25)

Copyright in the High Court of Australia

____________________

GAGELER CJ: Mr Solicitor.

MR DONAGHUE: Your Honours, the Commonwealth’s oral submissions will address two issues only. The first is the relationship between the Burns implication and the constitutional concept of a “matter”, and the second is the relevance of a decision being binding to whether it involves an exercise of judicial power.

As to the first of those issues, can I ask your Honours to go immediately to Burns v Corbett (2018) 265 CLR 304, which is in volume 3, tab 26 of the joint book, and to turn when you have it to paragraph 106, where your Honour the Chief Justice identified the implication that, in our submission, was the implication recognised by the majority in Burns v Corbett. I am going to come back in due course to the paragraphs leading up to this paragraph, but this is your Honour’s conclusion. Referring in the first line to judgments in Queen of Queensland Case, which I am also going to come to, your Honour said:

the constitutional implication applicable to the resolution of this case is that judicial power with respect to the subject matters identified in ss 75 and 76 of the Constitution is confined to judicial power of a kind that is: (1) exercisable in respect of justiciable controversies answering the constitutional description of “matters”; and (2) conferred on or invested in institutions answering the constitutional description of “courts”. With respect to the subject matters identified in ss 75 and 76, the Commonwealth Parliament and State Parliaments each lack legislative power to confer or invest judicial power of any other kind.

The Commonwealth respectfully embraces that formulation of the implication identified in Burns v Corbett. It is, as the numbered points (1) and (2) in the judgment made clear, an implication that means neither the Commonwealth nor the States can give judicial power with respect to the subject matter in 75 and 76 to anyone that is not a court – that was the actual issue in Burns – but it also means that neither the Commonwealth nor the States can give judicial power with respect to those subject matters in a proceeding that does not involve a matter, which is the holding in both Queen of Queensland and In re Judiciary Act, in our submission.

Both aspects of that formulation are grounded firmly in Boilermakers. In particular, in the negative force that the Court held in Boilermakers arises from the positive conferral of power in Chapter III. As your Honours know, all of the positive provisions in Chapter III are concerned with the conferral of judicial power on courts with respect to matters, but the fact that that is the positive content of Chapter III does not constrain the negative force of those words because the negative force is to say you cannot confer judicial power with respect to those subject matters in any way – you cannot do it to non‑courts; you cannot do it with non‑matters. The plurality and your Honour the Chief Justice in Burns both grounded the reasoning in support of the outcome in Burns squarely in a Boilermakers analysis.

EDELMAN J: That does not get you all the way, because you have State power as well and State legislative power.

MR DONAGHUE: Which is also constrained by the implication.

EDELMAN J: But that then relies upon a further implication in section 77.

MR DONAGHUE: Well, in my submission, your Honour, section 77 is part of what gives rise to the negative force coming from Chapter III. I am relying on 75, 76 and 77 in referring to the negative force and, in our submission, that negative force since Boilermakers and in the cases that have followed it have recognised not only that the Commonwealth cannot confer, for example, judicial power with respect to a matter arising under the Constitution on a non‑court, but also that a State cannot do so.

Perhaps one gets the best illustration of that in Wakim and the fate of the cross‑vesting legislation where States were trying to confer State judicial power on federal courts, and they could not. State legislative power was constrained by the negative force of Chapter III.

EDELMAN J: Yes, but none of that was legislative power that existed prior to 1901.

MR DONAGHUE: Your Honour is referring to the belonging jurisdiction recognised in 77(ii), and it is no part of our case – and, in our submission, Burns v Corbett is not inconsistent with what I am about to say – that States can confer State judicial power with respect to the subject matters in sections 75 and 76 on State courts without Chapter III interfering with that conferral. That was the belonging jurisdiction.

They can do that because the negative force of Chapter III does not prevent it, because as long as they do that, it is subject to the control of the Commonwealth Parliament under section 77. What they cannot do is confer judicial power with respect to those subject matters outside the control of the Commonwealth Parliament under section 77, which is why they cannot confer it on non‑courts, and why they cannot confer it with respect to non‑matters, because if they did either of those two things, the Commonwealth would not have the power under section 77 to exclude it.

Now, your Honour Justice Edelman, I appreciate that the scope of the power conferred by 77 was the matter – was the critical thing that divided the majority and the minority in Burns, but as Mr Lim said in answer to your Honour at the start of his submissions, there is no challenge to Burns.

EDELMAN J: Except you are now asking us to reopen, in circumstances where there may not be an issue that arises, the constitutional foundation for Burns v Corbett and Citta, and there is some tension between the two. If one needs to reopen that, then one may be driven to what the scope of section 77 is.

MR DONAGHUE: Well, your Honour, I was going to come to that, but I can come to it slightly out of order. In my submission, that framing of what is happening in this case the Commonwealth is asking your Honours to expand is not a framing that your Honours should accept.

There is an irony in what is happening here because before the Commonwealth filed any submissions in this case or took any position in this case, New South Wales and its supporting State and Territory interveners filed submissions contending, as a major premise of one part of their case, that the Burns implication applies only where there is a matter, then the minor premise of the argument was that there was no matter. So, they said, that is the scope of the Burns implication, and they went so far as to say that your Honours had already decided that point in Citta – in paragraph (1) of Citta, which is the summary of the holding in Burns.

Now, our friends seem to be saying – indeed, sorry, yesterday, the learned Solicitor for Queensland said your Honours should take paragraph (1) to be a:

considered view of the Court –

as a whole:

as to the reach of the Burns v Corbett implication.

That would be a surprising way to read it, for reasons I will come to, but it includes, respectfully, the proposition that your Honour the Chief Justice must have reversed – your analysis in Burns between Burns and Citta. We submit it is not a plausible reading of what was going on in Citta.

Now the State and Territory interveners are saying, the Commonwealth is trying to expand things, do not decide the point if you can possibly avoid it, seeking in effect to have your Honours signal to the world that there is an undecided question as to the scope of the Burns implication. Our submission is that the logic of Burns – the way it was framed by the Chief Justice in paragraph 106 that I just took your Honours to – and the decisions in Queen of Queensland and In re Judiciary and Navigation Acts are all already authorities supportive of the proposition that the negative force of Chapter III extends to precluding a conferral of jurisdiction in a non‑matter.

So, while it is true that the Court might decide this case on a footing that means you do not need to decide by reference to the arguments I am now making here, particularly if the Court finds there is no judicial power being exercised here – I think everyone agrees that the Burns v Corbett implication has nothing to say if there is no judicial power. So, your Honours might not reach it if you reach that holding. But, in our submission, that is quite different from saying that there is an undecided constitutional case, and that the Commonwealth is trying to press you to extend it. Our submission – and the submission I am going to develop in the next half an hour or so – is designed to establish that there is not an unresolved question that the existing authorities of this Court amply support what I am putting to the Court.

I do not think that it is necessary for me to return to the reasoning in Burns that supports the Burns implication. There were a number of factors identified in support of it. We have summarised them in paragraph 4 of our oral outline. We have not given your Honours there the most relevant references, but particularly in Burns at paragraphs 96 to 99 in Justice Gageler’s judgment and in the plurality at 49 you see support for those.

GORDON J: Are those views expressed consistent?

MR DONAGHUE: In my submission, they are. The overriding critical point, in my submission, is the capacity for Commonwealth Parliament to control the conferral of judicial power with respect to the nine subject matters in 75 and 76. Probably if the majority had held that section 77 – either 77(ii) or 77(iii) did confer Commonwealth Parliament to control judicial power on tribunals, the result would have been different. It would have been hard to establish the necessity for the implication.

EDELMAN J: It would not have been necessary at all.

MR DONAGHUE: It would not have been necessary. No, I accept that.

BEECH-JONES J: Mr Solicitor, sorry, can you just point me to where you say Chief Justice Kiefel, Justices Bell and Keane identified the negative implication in the same terms as paragraph 106?

MR DONAGHUE: The exact language does not appear, your Honour. It is paragraph 43 and following, linking the analysis to Boilermakers and the negative force of the positive provisions of Chapter III in Boilermakers. So, one sees at the end of paragraph 44, for example:

It would seem a matter of course to treat the affirmative provisions stating the character and judicial powers of the federal judicature as exhaustive. What reason could there be in treating it as an exhaustive statement, not of the powers, but only of the judicial power that may be exercised –

That is all a quote from Boilermakers, and then their Honours say in the next paragraph, in 45:

there was no good answer to the rhetorical question –

About halfway down that paragraph:

the approach to the interpretation of Ch III, whereby the statement of what may be done is taken to deny that it may be done otherwise, is also apt to deny the possibility that any matter referred to in s 75 or s 76 might be adjudicated by an organ of government, federal or State, other than a court referred to in Ch III.

So, that is why a tribunal cannot do it, as one manifestation of the negative force of Chapter III.

BEECH-JONES J: But that is expressed by reference to “matter”.

MR DONAGHUE: Well, there, it is; that is so. Perhaps the reason – the foothold for our friends’ argument in Citta is that when one is paraphrasing Chapter III, it is extremely difficult not to use the word “matter”, just because it appears so regularly throughout Chapter III that one refers naturally to the matters in section 75 and 76.

That, in this context, is best understood as the subject matters because, for the reasons that I am going to come to, at least since In re Judiciary and Navigation Acts, it has been recognised that the implication prevents the conferral of judicial power with respect to a non‑matter as well, in connection with those known subject matters. I will not read it all to your Honours, but their Honours go through, particularly to paragraph 49 and 50, explaining their reasoning and, in my submission, it is consistent with what your Honour the Chief Justice said in paragraph 106.

We have made this point in writing, but if the negative force of Chapter III did not prevent the conferral of judicial power with respect to non‑matters, then it would follow that the States and, indeed, the Commonwealth could empower a tribunal to give an advisory opinion – for example, create a tribunal consisting of retired judges, and task it with giving advisory opinions with respect to any of the matters in 75 or 76, including constitutional questions or questions as to the interpretation of the Commonwealth laws, and there would be no constraint as to how that tribunal was constituted and there would be no appeal to this Court.

That is not, in our submission, a fanciful suggestion. Indeed, Chief Justice Gleeson in Re Wakim 198 CLR 511 – which we have not given your Honours, but the reference is paragraph 16 – said, discussing that hypothetical:

The possibility is not fanciful. A power of that kind has been accepted to be judicial power.

and his Honour refers to In re Judiciary and Queen of Queenland, the same cases that I am relying on. The fact that it happened in Queen of Queensland, that a State tried to confer advisory jurisdiction in relation to constitutional questions outside of Chapter III, demonstrates that the point is not hypothetical.

Can I ask your Honours to – I am going to take your Honours to the two cases that I have just mentioned. Really, on the other side of the record, it is only Queensland who have engaged in any detail in oral submissions with these cases. The argument seems to be that your Honours did not need to be concerned about the possibility that I have just identified because it was unlikely that a conferral of an advisory jurisdiction of that kind would involve an exercise of judicial power.

In our respectful submission, the question is not how likely or not it is that a State will purport to do this – it has, as I have said, been done or attempted to be done at least once before – the question is one of power. In our submission, both cases were expressly decided on the basis that what the State or Commonwealth had purported to do was to confer judicial power in both cases on a court – or effectively a court in the case of the Privy Council; it was treated as a court – in a non‑matter. It was that combination of things that Chapter III was held to prevent.

Can I start with In re Judiciary Act [1921] HCA 20; (1921) 29 CLR 257, which is volume 5, tab 48. When your Honours have it, I invite you to turn to page 263, which is the first page of the judgment of five members of the Court, just to pick up the provisions in Part XII of the Judiciary Act which were in issue. You can see in the last full paragraph on the page, three lines down:

By sec. 88 Parliament purports to confer on this Court “jurisdiction to hear and determine” “any question of law as to the validity of any Act or enactment of the Parliament” which “the Governor‑General refers to the High Court for hearing and determination.”

So, all you needed to enliven this purported jurisdiction was an executive reference to the Court to hear and determine the question. Then there were some provisions about the constitution of the Court and notice to Attorneys‑General if they wanted to appear to argue the matter, and then over the page, a few lines down on 264:

Sec. 93 provides that the determination of the Court upon the matter shall be final and conclusive and not subject to any appeal.

The Commonwealth’s argument, summarised in the next paragraph, was that those provisions conferred a jurisdiction that was merely advisory and not judicial, and that submission was unequivocally rejected:

In our opinion this contention is untenable . . . Parliament desired to obtain from this Court not merely an opinion but an authoritative declaration of the law. To make such a declaration is clearly a judicial function.

So, In re Judiciary held – and it has been recognised by this Court multiple times since – that the power in question was judicial power. It did not infringe Chapter III as a purported conferral of a non‑judicial function. It was judicial.

But it was still invalid. The reason it was still invalid – and I have said the Court has recognised that it was judicial in other cases; one of them is Boilermakers at 273, but I will not take your Honours to that. The reason it was invalid appears from 265 and following. You have, at about point 3 of 265, a statement that foreshadows the subsequent holding in Boilermakers. The express statement of the matters in respect of which original jurisdiction can be conferred necessarily excludes the exercise of any other original jurisdiction. But then, going down a little further on the page, just under halfway down, there is a sentence that says:

It is said that here is a matter arising under the Constitution or involving its interpretation, and that Parliament by sec. 30 of the Judiciary Act has conferred on this Court original jurisdiction in all matters arising under the Constitution or involving its interpretation. It is true that the answer to the question submitted for our determination does involve the interpretation of the Constitution, but is there a matter within the meaning of sec. 76? We think not.

So, it was judicial power; it was with respect to one of the relevant subject matters, 76(i), but there was not a matter, and their Honours then engaged in the now famous reasoning, defining or identifying the content of a matter as the subject matter for determination in the legal proceeding. But it cannot be, as one sees particularly at the top of 267, jumping forward, two lines down:

But we can find nothing in Chapter III . . . to lend colour to the view that Parliament can confer power or jurisdiction upon the High Court to determine abstract questions of law without the right or duty of any body or person being involved.

So, the result in In re Judiciary Act, in our submission, is a result only explicable on the basis that the negative force of Chapter III invalidates a Commonwealth law that purports to confer judicial power with respect to a non‑matter overlapping with one of the nine subject‑matters – here, 76(1). That is the holding, and it has never been overturned.

If Chapter III has that negative operation with respect to non‑matters, one would need a principle basis to find that it does not, similarly, exclude purported jurisdiction with respect to non‑matters on a tribunal. It would be most odd if the Constitution stops a court from exercising judicial power with respect to a non‑matter but allow a tribunal to do so. If anyone can give advisory opinions in relation to the Constitution, one would think it would be this Court, but In re Judiciary Act says no. The States’ argument says, yes, but you can constitute a tribunal in any way you choose and that will be valid.

The other case, your Honours, is Queen of Queensland [1975] HCA 43; (1975) 134 CLR 298, in volume 3, tab 29. This case concerned the validity of an Act called the Appeals and Special Reference Act 1973 (Qld) which purported to confer upon the judicial committee of the Privy Council jurisdiction to hear and consider questions or matters concerning any law enforced in Queensland. The provisions, themselves, are set out on pages 305 and 306, but it is, I think, sufficient for me to take your Honours to Justice Gibbs’ summary on page 307, at about point 8 on the page, where his Honour says:

The words of ss. 3(2) and 4(2), in their natural meaning, include questions arising under or concerning any law of the Commonwealth in force in Queensland—not only questions as to the interpretation and effect of Commonwealth laws, but also questions whether such laws are invalid as going beyond Commonwealth legislative power.

That was the scope of the purported conferral of jurisdiction on the Privy Council. As you see over the page on 308, about point 2, and 10 lines down:

The sections relate to these questions whether or not they are the subject of curial proceedings. They relate to the questions, inter alia, if they arise “in the course of any proceedings in any court in Queensland or otherwise”.

Again, it was not required to be connected to any immediate enforcement of the law or administration of the law. Queensland tried to defend the law, as you can see at the bottom of 308, by submitting that the provisions:

provide a means by which the government of the State of Queensland may obtain advice upon matters with which it is concerned.

And it said, going over to the top of the next page, the Privy Council:

would do no more than give advice –

and an attempt was drawn to analogise with a Canadian decision. You actually see the report of the argument that Queensland made back at page 302 of the Commonwealth Law Reports, where Mr Sheahan, leading Mr Jackson on behalf of Queensland, said:

Advice given under s. 4 of the 1833 –

Act – which was an English Act concerning the Privy Council and the Judicial Committee Act:

and under the 1973 Act –

the one that was in play:

is advice in the literal sense. It is not a judgment. It has no more effect than a law officer’s opinion . . . The 1973 Act does not contemplate and could not contemplate that any question which was a matter within Chapter III could be referred for judicial decision.

So, the argument was, this is okay because it is not conferring jurisdiction with respect to matters, it is just advisory.

EDELMAN J: And it is not judicial power.

MR DONAGHUE: And it is not judicial power, it was said. The Court did not reject both propositions, it was not disputed that this was an advisory opinion‑type jurisdiction, but it was an attempt to give judicial power with respect to a non‑matter. Your Honour the Chief Justice in 103 of Burns described it as advisory opinions, and your Honour Justice Gordon characterised it quite the same way in Burns at 181.

There are two judgments holding – the whole Court held that these provisions were invalid. The clearest reasoning in support of the argument I am now advancing is that that appears in the judgment of Justice Jacobs, with whom Justice McTiernan substantially agreed. I will start with that judgment and then come to the judgment of Justice Gibbs, with whom Chief Justice Barwick, Justices Stephen and Mason agreed.

There is, perhaps, more room for argument about that judgment, and that was a matter that those of your Honours who were here in Burns v Corbett will recall was the subject of some disagreement, so I want to deal with Justice Jacobs first, then come to Justice Gibbs, and then to what was said about it in Burns. Justice Jacobs’ reasons, relevantly, commence at page 325, about eight lines down:

The argument on behalf of the defendants depends upon the submission that a reference of the proposed questions to the Judicial Committee, although it is a reference of a “matter” under –

the Privy Council Act, the UK Act:

is not a reference of a “matter” under either s. 75 or s. 76 . . . in that the questions proposed to be asked in the reference are hypothetical questions.

So, it depends upon that point, his Honour says. He refers to In re Judiciary Act that the function there:

was clearly a judicial function –

and that the holding was that even though it was judicial power, the:

judicial power is not co‑extensive with the limits of judicial power which Ch. III of the Constitution prescribes –

Then, near the end of the main paragraph on the page, leading up to footnote 56, the Constitution was:

clearly intended as a delimitation of the whole of the original jurisdiction which may be exercised under the judicial power of the Commonwealth, and as a necessary exclusion of any other exercise of original jurisdiction.”

That is the same passage I have shown your Honours:

In re the Judiciary Act . . . was not decided as a case where it was sought to impose a non‑judicial function upon the High Court . . . It was decided on the ground which I have stated and has never been overruled.

I will pass over 326, although we do not disagree with anything that his Honour says there. At 327, the first full paragraph:

In my opinion the judicial power delineated in Ch. III is exhaustive of the manner in and the extent to which judicial power may be conferred on or exercised by any court in respect of the subject matters set forth in ss. 75 and 76, “matters” in those sections meaning “subject matters” . . . In respect of the subject matters set out in ss. 75 and 76 judicial power may only be exercised within the limits of the kind of judicial power envisaged in Ch. III –

Then, most importantly, from about 10 lines up from the bottom:

Chapter III . . . is so constructed that the limits of the Commonwealth power to invest State courts with federal jurisdiction with respect to the matters mentioned in ss. 75 and 76 mark out the limits of the judicial power or function which in any case State courts can exercise . . . A State thus could not empower one of its courts to give advisory opinions on those subject matters.

So, the negative implication stops giving a non‑matter function to the Court and we submit a fortiori stops giving it to a State tribunal. Over the page at about point 3:

Once it is recognized that the Judicial Committee is a judicial body and that it exercises judicial power and once it is recognized that Ch. III of the Constitution is an exhaustive statement of the kind of judicial power which may be conferred . . . it is of no consequence . . . that the Judicial Committee may consider and determine “matters” under s. 4 of the 1833 Act which are not “matters" under ss. 75 and 76. The subject matters under those sections of the Constitution may only be considered and determined in exercise of the kind of judicial power envisaged under Ch. III –

Now, I emphasise those words “envisaged under”, because we submit that it accommodates the question your Honour Justice Edelman raised with me about the belonging jurisdiction. It does not mean conferred by the Commonwealth pursuant to; Chapter III envisages that, but it also envisages belonging jurisdiction. What matters is that States can – subject to any inconsistent Commonwealth law, of course – confer judicial power with respect to those subject matters only on courts. Were it not for section 39(2) of the Judiciary Act, they could still do it, but now, a State attempt to confer judicial power on those subject matters would be inconsistent with 39(2).

So, your Honour the Chief Justice said in Burns that Justice Jacobs’ judgment was completely consistent with the implication identified by the majority in that case, and we respectfully agree. The other judgment, that of Justice Gibbs, the relevant reasoning is brief, and it appears from the bottom of 314 and on 315. The relevant passage begins on the last few words of 314:

It is implicit in Ch. III –

And it runs down to the end of that paragraph. Your Honours will note multiple references in that – I will not read out the whole passage, but multiple references to it being “implicit” in Chapter III or:

principles that underlie Ch. III –

At the end of the passage:

contrary to the inhibitions which, if not express, are clearly implicit in Ch. III.

The debate, as I understand it, between some of your Honours in Burns was about whether the implication was engaged only in a case where the Commonwealth had exercised its legislative power under Chapter III so as to render the exercise of judicial power with respect to those subject matters exclusive or not.

EDELMAN J: With respect to State subject matters.

MR DONAGHUE: In respect of State subject matters. Our answer to that is the answer that we understand your Honour the Chief Justice to have given at paragraph 103 of Burns. Can I ask your Honours to go back to that. It is volume 3, tab 26. Your Honour quotes the passage I have just identified in 102 and says:

Whilst that statement might perhaps be interpreted as suggesting that the implied limitation . . . was contingent on the Commonwealth Parliament having first legislated . . . such an interpretation would not readily explain the outcome . . . The outcome was to deny the validity of the State law in its application purportedly to authorise seeking from the Privy Council an advisory opinion . . . That purported conferral of authority was beyond the scope of any legislation which the Commonwealth Parliament had enacted, or could have enacted, with respect to any matter mentioned in s 75 or s 76, both because it was in respect of an advisory opinion and because the Privy Council was neither a federal nor a State court. The outcome was produced by a negative implication that was necessary to give efficacy to the Commonwealth legislative powers –

So, that is respectfully how we also read the reasons of Justice Gibbs. It all comes back to the limits of Commonwealth legislative power under section 77, but if the Commonwealth cannot exclude State judicial power on tribunals, on non‑courts, or State judicial power with respect to non‑matters, then the States could circumvent the affirmative scheme of Chapter III and the negative implication precludes that from having occurred.

EDELMAN J: Of course, in Burns, there was no substantial argument on what the scope of the meaning of “court” was in section 77 either, nor was there in the Queen of Queensland Case.

MR DONAGHUE: I think in the Queen of Queensland Case there was an argument about how to deal with the Privy Council because, obviously, there is a lot of history involved in characterising it. But I think I can accept what your Honour says there – the word “court” obviously has a constitutional meaning in Chapter III and one sometimes in these cases needs to have a debate about whether a body like NCAT or VCAT is or is not a court. If it counted as a court, then it would not be the subject of the Burns implication.

EDELMAN J: The point I make is more about, I think, section 77(iii), the power to make exclusive that one reads “court” as courts including tribunals. If that is the proper construction of section 77(iii), then an implication of the scope that was contemplated by the majority in Byrnes v Kendle would not be necessary.

MR DONAGHUE: In my submission, your Honour, one could have that debate in a case where Burns was reopened. But in a case where Burns is not reopened, it is answered.

EDELMAN J: But that is why I come back to the point that I made to you at the start. If one is going to get into what is the foundation and the necessity for the implication, how far does it extend, does it extend to matters or not, then these issues become alive, do they not?

MR DONAGHUE: What I am putting to your Honours is that, back to In re Judiciary, the implications have been recognised as extending to non‑matters. I am not asking your Honours to take any new step. That is why I invite your Honours to reject the State’s framing of this as a Commonwealth adventurism or expansionism. We are just saying your Honours have already decided these questions.

EDELMAN J: Yes, I understand.

MR DONAGHUE: So, in our submission, one cannot explain the outcome in either Queen of Queensland or In re Judiciary without recognising that Chapter III prevents the conferral of judicial power with respect to non‑matters otherwise than in the particular way that Chapter III contemplates. If that is right, then the States are wrong in suggesting that the Burns implication does not capture this case because there is a non‑matter. The determinative question is does it exercise judicial power or not, and that is the only question that your Honours need to worry about. You do not need to worry about whether there is a matter or not, and none of that analysis gets imported into the application of the Burns implication.

The proposition that either Burns or Citta are inconsistent with what I have just said, we submit, is unsustainable. It was common ground in Burns that there was a matter. So, even though your Honour the Chief Justice in the formulation at 106 identified the two limbs, there was no contest between the parties as to one of those limbs. The contest was as to the other one, State tribunals versus State courts, and the same was true in Citta. In both of those cases there was a matter, so that the application of the implication to exclude jurisdiction with respect to non‑matters could not have bitten, on the facts of either of those cases. What I have been trying to do in the submissions I have made to date is to demonstrate that the same reasoning, the reasoning that says judicial power with respect to those nine subject matters cannot be conferred in any other way, necessarily embraces the non‑matter situation as well.

As your Honours have seen – I do not think I need to take you back to it – in Citta, the paragraph that our friends rely upon is the first paragraph of the joint reasons which summarises in a sentence or two the holding in Burns, and it does use the words:

any matter of a description in s 75 or s 76 –

But the notion that in summarising that decision, the Court was rejecting the application of the Burns implication to non‑matters, even though nobody was arguing that the application did not extend to non‑matters – that just was not an issue in the case – is not an available way of reading the judgment.

Our friends for Queensland contend to the contrary by pointing out that the then Solicitor‑General for Queensland read Burns in exactly the way that I have just invited your Honours to read it. Read it as not turning upon the operation of a matter, he made that submission, and then it said the fact that that submission was not affirmatively embraced shows that it was rejected. It does not show that, it just shows that it was not necessary to say anything about that point, having regard to the way issue was joined in the case and, in particular, the express holding at paragraph 33 that there was a matter there in issue.

So, in our submission, whether or not your Honours get to this point, there is not – we would urge not to decide the case in a way that suggests that there is an open question. These matters are litigated commonly in lower courts about the application of the Burns implication. If your Honours cast doubt where there is no doubt, we will be back here having this argument again in the near future. So, it may not be necessary to decide it but, in my submission, nor is it necessary to suggest uncertainty where there, in our submission, is none.

EDELMAN J: But you have – it only becomes necessary to decide in the case where you have judicial power in a non‑matter.

MR DONAGHUE: That is correct.

EDELMAN J: Which even excludes trustee cases – trustee advice, liquidator advice, all of those situations.

MR DONAGHUE: Which have been accepted as involving matters. That is so.

BEECH‑JONES J: Usually only where there is something happening between residents of different States because that has been the context for most of these cases.

MR DONAGHUE: That has been the context for many of them, and it seems reasonably unlikely to arise in that context for the reasons your Honour raised with my friends yesterday. But it may be no coincidence that the two examples I can give are both advisory opinion‑type cases.

BEECH‑JONES J: Can you give us any other example of judicial power not involving a matter, other than advisory opinions? Take it on board, Mr Donaghue.

MR DONAGHUE: Yes. Not immediately, your Honour. It will often not be important, but where it has the potential to be important, and we apprehend that perhaps why the parties have aligned as they have in this universe is that there is scope for parties to try to wind back – indeed, the argument that I am meeting is an argument advanced by all of the States to say, our tribunals will sometimes exercise jurisdiction where they exercise judicial power but in non‑matters. That, as I understand it, is why all of the States came along, to assert that this limit exists.

If they are right, that that is actually something that happens, then there will be other examples which could come before the Court, but it is not immediately apparent to us that they are right. Usually, one would expect that an exercise of judicial power will involve a matter, but it is possible, for the reasons I am about to come to, that there might be some complexities in relation to the enforceability question and the relevance of that to the characterisation of the power.

Can I turn my remaining time to the second topic, the judicial power topic. Your Honours will have seen that we said in writing that section 78 of the CAT Act, if I can call it that, was important to the answer to the characterisation question, because we said that if your Honours found that section 78 applied, we agreed with the Court of Appeal that Brandy was indistinguishable, and if section 78 did not apply, we agreed with New South Wales’ submissions that the Tribunal would not have exercised judicial power.

I do not resile from that, but I do seek to clarify one point. If your Honours could turn very briefly back to Brandy [1995] HCA 10; 183 CLR 245, which is volume 3, tab 25, and turn to page 269. I am not going to read this page again – your Honours have already been taken to it – but the submission I want to make is about the structure of the reasoning that your Honours see on that page.

BEECH‑JONES J: Sorry, what page was that?

MR DONAGHUE: Page 269 in the joint judgment of four members of the Court. We would invite your Honours to read this reasoning structurally as involving three steps. Step 1, which appears at about point 4 in the paragraph beginning “Turning to the present case” is to look at the nature of the function that the Tribunal is exercising. There, the Court said:

It decides controversies between parties and does so by the determination of rights and duties based upon existing facts and the law –

deciding whether there has been a contravention, and it said it is closely analogous to what a court does. So, the Court started by looking at the nature of the function. That is step 1. Step 2, which then appears right near the bottom of the page, a few lines up, was that the prima facie characterisation of the function of the judicial – if I can call it that – was reversed. It was reversed by 25Z(2) which expressly said that the determination was not “binding or conclusive”.

Step 3 was that that provision was then reversed again by the registration provision which made the order without more registerable and enforceable as an order of the court.

EDELMAN J: This is Mr Free’s submission.

MR DONAGHUE: Sorry?

EDELMAN J: This is Mr Free’s submission.

MR DONAGHUE: I think I am consistent with what Mr Free said. So, that if one does not have – I am just seeking to clarify why we gave 78 the important role that we did. We were not suggesting – as Mr Free did not suggest – that registration itself meant something would be judicial without looking at anything else about the function, and Brandy does not reason in that way. If you do not have a 25Z(2) provision, which we do not have in this Act, you do not need the registration provision to reverse it.

EDELMAN J: But it is not really registration operating as registration. The registration itself is not doing anything. It is the fact that the registration is counteracting or making a nonsense of the provision that says that this is not binding.

MR DONAGHUE: I accept that, your Honour.

EDELMAN J: The registration is really showing actually, it is, in effect, binding.

MR DONAGHUE: It is binding. Even though the Act said it was not, in this particular situation it is and, therefore, it has one of the characteristics ‑ ‑ ‑

EDELMAN J: So, if you read that way, it is not the cart driving the horse at all, the question of bindingness is one of the most important questions for the characterisation exercise.

MR DONAGHUE: I entirely accept that, your Honour, and that is really the only point I wanted to address about the judicial power function. I was trying to build up to that by clarifying what we had said about Brandy.

GORDON J: Do you accept that the registration process is different here, compared to Brandy, both in its nature and effect?

MR DONAGHUE: I have not, to date, accepted that, your Honour. In our written submissions we said that it was sufficiently analogous to the Brandy ‑ ‑ ‑

GORDON J: Sufficiently analogous, but there are some differences.

MR DONAGHUE: There are some differences, but really, I suppose, the point I am seeking to make at this stage is that if your Honours were to find – and I do not seek to enter this debate, but if your Honours were to find that, at what I have called step 1, there are sufficient differences between the PPIP Act and what was going on under the Racial Discrimination Act that the function is not judicial, then you would not need to worry about the registration provision unless you needed it to make the order binding, and you might not.

EDELMAN J: Or, at step 2, if there is nothing in effect that says this is not binding.

MR DONAGHUE: Which there is not, in this regime.

EDELMAN J: So, you do not need the registration there to counteract ‑ ‑ ‑

MR DONAGHUE: You do not need the registration provision to reverse it. That was the point I was seeking to make. But some of the debate yesterday perhaps might have gone to the question of the answer to step 1, and we have not entered that debate, and I do not seek to enter it any further.

On the question of binding, we do wish to make these submissions, and they are really directed to Citta. Can I ask your Honours to go to Citta [2022] HCA 16; (2022) 276 CLR 216, it is volume 3, tab 28, and if your Honours could turn to paragraph 13.

STEWARD J: Was that 13?

MR DONAGHUE: Paragraph 13, your Honour, yes.

STEWARD J: Thank you.

MR DONAGHUE: So, 12 refers to an earlier decision of the Federal Court that the Tribunal exercised judicial power and was challenged by the Human Rights Commission on one aspect of the reasoning. Then, at 13, the reasons record:

Proceeding on the indisputable premise that the jurisdiction conferred on the Tribunal to hear and determine a complaint cannot involve the exercise of judicial power unless such order as the Tribunal may make if it finds the complaint to be established is binding on the parties –

The AHRC then attacked the registration provisions. So, it was indisputable that it need to be binding. Then the Court turned in paragraph 14 to Brandy and the significance of 25Z(2) and the need to reverse it – the discussion that I have just had with your Honours. Then in 15 it was said the flaw was that:

it confuses the order . . . with the mechanism for enforcement –

And then 16:

The State Act on its proper construction makes clear that an order made by the Tribunal on finding a complaint established takes immediate effect as an order with which the person to whom it is directed is bound to comply.

And your Honours were referred particularly to 90(1)(c) of the State Act, which was a provision that allowed a person to file documents in the Supreme Court to enforce an order to the extent to which the order has not been complied with, as indicating a legislative expectation that there would be compliance.

The submissions that we make about that case are as follows. Bindingness, as paragraph 13 records, is a necessary condition for an exercise of judicial power. But bindingness is not a sufficient condition for the exercise of judicial power and, in our submission, on a fair reading of paragraph 16 of Citta, it does not suggest otherwise. You still need to engage in the multifactorial‑type analysis familiar in the jurisprudence of this Court about the identification of judicial power. If the order is not binding, then you will not conclude that it was judicial.

But there are many decisions that the Court has recognised as binding that are nevertheless not judicial. So, in Brandy itself – and I will not ask your Honours to go back there yet another time – but at the top of page 268 of Brandy itself, the Court says:

It is traditional to start with the definition advanced by Griffith CJ in Huddart, Parker & Co Pty Ltd v Moorehead in which he spoke of the concept of judicial power in terms of the binding and authoritative decision of controversies between subjects ‑ ‑ ‑

GAGELER CJ: Part of the problem here with the word “binding”. If you are talking about quelling a controversy between parties, then an exercise of judicial power is necessarily binding in the sense that the parties are stuck with it.

MR DONAGHUE: Yes.

GAGELER CJ: That is the answer to the question between them. That is not necessarily the way in which the word “binding” is always used, and it is quite possible to have an exercise of non‑judicial power which will require one party to a controversy to take some action to pay some money ‑ ‑ ‑

MR DONAGHUE: Yes, yes.

GAGELER CJ: ‑ ‑ ‑ without that being – it is not binding in the same sense.

MR DONAGHUE: Exactly.

GAGELER CJ: It is requiring one party to do something.

MR DONAGHUE: I entirely embrace that, and that is why we have said in writing – we talked about being “binding” in the relevant sense. I was not sure, on further thinking about it, how helpful that would be, but I absolutely embrace what your Honour the Chief Justice says.

A lot does depend on what you mean, and Citta perhaps suggests one has to be careful in equating “binding” with “enforceable”. Certainly, one definitely needs to be careful with equating “binding” and enforceable by the body that gives the decision, because there are cases going back to Davidson that recognise that a court does not necessarily need to be able to give execution of its own orders. It might be that – in Davidson, the order was enforced by an independent administrative decision made by a sheriff, I think, from recollection.

But the cases including Tasmanian Breweries – Justice Windeyer at the bottom of page 402 – I will not take your Honours to these references given the time, but his Honour there said:

the determinations of the Tribunal are “binding and authoritative”, the phrase which Griffith C.J. used –

but that is not:

compelling either way. One attribute of the decision of a court is not to be made the touchstone of the judicial power.

Justice Mason said something similar in Salisbury. The board there made decisions that were binding unless set aside on appeal but that did not mean it was judicial power. This is, I think, my last submission. In our submission, Citta, including in particular at 16, should not be read as denying the traditional exercise of looking at relevant factors that inform the character of the power a tribunal exercises, including, as the States have submitted, the chameleon doctrine – so, the capacity for a function to take its character from the repository; here, a repository that does not have to be comprised of lawyers. Those are indicators that might point against judicial power.

Another factor that has usually been regarded as pointing against the exercise of judicial power is whether or not the decision is enforceable without an independent exercise of judicial power, and I am taking that language from Brandy as embraced by the Court in Breckler. In Breckler, there was a decision of – in fact, I might ask your Honours to turn to this as the last thing I do. Breckler (1999) 197 CLR 83 is volume 3, tab 24. It is concerned with the effect of decisions of the Superannuation Board. Paragraph 42 summarises Brandy and the effect of the registration of the Act to convert the:

non‑binding administrative determination into a determination of the character identified by Kitto J, namely a binding, authoritative and curially enforceable determination.

The authorities are replete with references to “curially enforceable”. In Breckler, at 45, you see the Court emphasising that the Acts there in question took:

the existence of a determination by the Tribunal as a criterion by reference to which legal norms are imposed and remedies provided –

For example, injunctions under the Supervision Act, obligations on trustees. Then at the bottom of that paragraph:

The provisions we have discussed would involve what Mason CJ, Brennan and Toohey JJ identified in Brandy . . . as “an independent exercise of judicial power” to give effect in this way to a determination by the Tribunal.

So, that is a factor commonly relied upon as pointing against the conclusion that a particular exercise of power is judicial, even if the first decision is binding. So, it might be binding in the sense that the parties are required to do a thing, but in order to make them, to have an enforceable outcome, if you need to go to a court for an independent exercise of power, that will point against the former function being judicial, and that is quite important to a variety of bodies created under Commonwealth legislation.

GORDON J: If you apply that here, is that significant in this sense, that in Brandy, the obligation or the registration was in the relevant Discrimination Act itself and they were required to lodge the determination. Here, the certificate is issued by the Registrar as a matter of course, and then a further step has to be taken in relation to the certificate, as I understand it.

MR DONAGHUE: Yes, not a mandatory ‑ ‑ ‑

GORDON J: Correct.

MR DONAGHUE: That is one – sorry, your Honour, I did not mean to interrupt.

GORDON J: So, up until that point, there has not been a step of exercising judicial power until the separate step is taken. Is that the point you seek to make?

MR DONAGHUE: That was not the distinction I was drawing – and I think, from recollection, in the Court of Appeal’s reasoning, they acknowledge that difference but still treat the capacity unilaterally to register as sufficient. The point I was seeking to ‑ ‑ ‑

GORDON J: But it is a distinction whereas a separate step has to be taken for the exercise of judicial power.

MR DONAGHUE: That is so. Although, in Brandy, upon registration, or upon the – as your Honour puts to me, there was a duty to register and then registration happened automatically. So, you did not need a judicial mind to turn to the question in order for the order to take effect.

GORDON J: No, because the Act itself required it.

MR DONAGHUE: Yes, yes.

GORDON J: So, the Act itself was recognising that that step had to be taken.

MR DONAGHUE: What I am endeavouring to put to your Honour is that even if the Brandy situation, because of the duties, did not involve an independent exercise of judicial power – I may be agreeing with your Honour, actually – that where you need to do something to enliven an exercise of judicial power to bring about enforceability, that would point against the characterisation of the first thing being judicial, I think. I think that is what your Honour is putting to me, and I agree.

BEECH-JONES J: But you are not saying that the process under section 78 of the Civil and Administration Tribunal Act is an independent exercise of judicial power, are you, in this case? Or you are not saying anything at all?

MR DONAGHUE: I am not saying anything at all about that. I am seeking to answer what, at one point, appeared to be a submission put by Mr Free, and I apprehend that perhaps the first respondent might say something similar, to the effect that – I am referring, for example, to Mr Free’s submissions at page 76 and 81 of the transcript, where it was said:

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 –

of the decision; or that we do not need anything, Citta would say that there is no:

requirement beyond a legal position where the person subject to the order is bound –

We submit that goes a bit far. The person needs to be bound, but there are other requirements, and if one of the things that you need – and I am not taking a position on this on the facts of this case – is an independent exercise of judicial power then, we submit that, to enforce the decision, that points against characterisation as judicial.

GAGELER CJ: Mr Solicitor, there is a topic I want to explore with you when you are towards the end of your submissions.

MR DONAGHUE: That was the end of my submissions, your Honour.

GAGELER CJ: This might be the time to raise it. Giving it a label, it is the relevance to the characterisation of judicial power that the party who is required by an order to do something is a public authority, and that the order is being made by another public authority. Breckler and Brandy were both cases where the order was against what we might call a private party – Brandy was against a citizen. Although you do not see much of the discussion in the cases about that, surely that must be a significant factor to be taken into account.

I was thinking about, really, Commonwealth workers’ compensation legislation, for example. It is a very court‑like process that produces an outcome where a Commonwealth authority is required to pay a worker a sum of money. I looked at the Racial Discrimination Act – which I think you provided in the authorities, tab 9 – there was a separate regime for enforcement of a damages declaration against a Commonwealth agency. That was not challenged in Brandy. It is very hard to see that the basic structure is very, very different from what we have here. Anyway, that is the topic.

MR DONAGHUE: It is a large topic, your Honour, and it is a topic that, as I understand it – although I am not in a position standing here now to give your Honours the details of it – while it has not been the subject of much litigation in Australia, has been the subject of considerable litigation in the United States, as I understand it – as the relevance of the point. There is, perhaps, an analogy loose with a decision of this case about a decade ago in ACTU which was about taxes which said that inter‑governmental activities could not really meet ‑ ‑ ‑

GAGELER CJ: It is analogous.

MR DONAGHUE: So, a similar kind of idea could be developed. The Racial Discrimination Act example your Honour puts to me is interesting in that the separate division that your Honour mentions – Division 4 of Part 3 – in its second section, 25ZE ‑ ‑ ‑

GAGELER CJ: It said, “the agency must comply” ‑ ‑ ‑

MR DONAGHUE:

must comply with the determination.

And the next section:

must not repeat or continue conduct . . .

. . . must perform the act –

that was identified. If there were damages:

the complainant is entitled to be paid –

the damages. So, it was very strong language used in those provisions. Your Honours might recall from that case that there was an amendment made to the case stated, I think, after ‑ ‑ ‑

GAGELER CJ: It was so long ago, Mr Solicitor.

MR DONAGHUE: I know it was a long time ago. It is fresher in my mind, your Honour, because I have read the transcript. So, the argument happened, the parties are directed to go to a single judge, Justice Gaudron, to amend the special case, and there was a debate in that context about the amendment which ended up with an amendment that asked the Court about the validity of the whole of Part 3 – as you can see at the end of – by reason of, or in consequence of, amendments that were made to the Racial Discrimination Act to introduce provisions that included not just the registration provisions, but also the provisions your Honour is now asking about in Division 4.

There was a small amount of debate in the hearing in Brandy about those provisions, and whether or not they did confer judicial power. Justices Deane, Toohey and McHugh, I think, all raised that question, but ultimately the judgment does not say anything. Chief Justice Mason, with Justices Brennan and Toohey, summarised that provision in one paragraph and the Court then says nothing about its validity.

But the differentiation drawn between registrable orders on the one hand against private parties and non‑registrable orders that attracted the operation of Division 2 does suggest a parliamentary recognition that you might not expect to need courts to enforce obligations imposed upon public parties with respect to one another.

GAGELER CJ: Well, section 25ZG, the damages provision, creates the entitlement which is recoverable ‑ ‑ ‑

MR DONAGHUE: As a debt.

GAGELER CJ: ‑ ‑ ‑ by suit against the Commonwealth, so there is a contemplation of enforcement in that sense.

MR DONAGHUE: That is true, but there would need to be an independent exercise of judicial power in order to enforce that debt, which may be part of the answer. I think – there are some complexities about some of these questions because, for example, the Privacy Act (Cth) originally was an intergovernmental or – obligations imposed only upon public authorities, but then it was extended. So, if there is a different concept of judicial power, that might need to accommodate that kind of scenario.

BEECH‑JONES J: Mr Solicitor, the fact that a regime only exists to impose – I will use the word in quotation marks – “obligations” on the State may tend towards it being more characterised, as Mr Lim said, being bureaucratic rather than a legal norm.

MR DONAGHUE: Perhaps, your Honour. My hesitation there is that for much of public law, obligations or constraints are imposed upon governmental decision‑makers which then get enforced against them in the court. So, the fact that the obligation is on the government cannot be enough. It may if be both sides of the transaction are intergovernmental, there is a significance there. But if your Honours would be assisted, we will be happy to try to assist your Honours, but I cannot ‑ ‑ ‑

EDELMAN J: It is a very, very big question ‑ ‑ ‑

MR DONAGHUE: It is a big question.

EDELMAN J: ‑ ‑ ‑ because historically, it also runs into the historic parallels in the development, for example, of the law of torts by reference to crime, actions between the individual and the State and the individual and individual, developed judicially by reference to each other.

MR DONAGHUE: Yes, your Honour. I do not want to suggest to your Honours that we reject the possibility that there might be scope for the law to develop in a way that pays more attention to the distinction that your Honours are raising with me.

GORDON J: It may not even be a distinction. It may just be the fact – that there is a fact of arrangement under a statute between two government entities.

MR DONAGHUE: It could be the case, for example, that you need less by way of enforcement mechanism to conclude that there is a binding decision that constitutes an exercise of judicial power for intergovernmental ‑ ‑ ‑

GORDON J: Which is really Mr Lim’s submission in a different form. What he said both in writing and orally was that you would expect them to obey.

MR DONAGHUE: Yes.

GORDON J: Now, that is a flipside, really, of the same kind of idea.

MR DONAGHUE: Though he was deploying the idea in part to suggest that there were no legal norms, that they were bureaucratic or administrative.

GORDON J: It is multifactorial. They can go to different aspects.

MR DONAGHUE: It can fit into the analysis in different ways; I accept that. I suppose my difficulty, being frank, is that we have not developed the submission in that way in this case and, if your Honours would like us to do so, I would seek leave to do so in writing subsequently. But the parameters of the exercise are perhaps a little – well, unless your Honours want to sharpen it up, I am not sure exactly what the boundaries of our task would be.

GAGELER CJ: Otherwise, your submissions are complete?

MR DONAGHUE: Otherwise, my submissions are complete.

GAGELER CJ: We will take the morning adjournment at this stage and Ms Wojciechowska will speak once we return. Thank you.

MR DONAGHUE: If the Court pleases.

AT 11.10 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.24 AM:

GAGELER CJ: The Court will not be troubling the parties or interveners for any further submissions. Ms Wojciechowska.

MS WOJCIECHOWSKA: May it please the Court. I would like to commence my submissions with a request, in the event that your Honour were to permit any post‑hearing submissions to the intervener for the Commonwealth, that I also be permitted to submit written submissions on the issues agitated by the Solicitor‑General for the Commonwealth.

GAGELER CJ: Thank you. We have decided that we will not receive any post‑hearing submissions from the Solicitor‑General for the Commonwealth, so that is the answer.

MS WOJCIECHOWSKA: Thank you. I would also like to thank the Court for the appointment of the amici and the amici for their submissions. It is no secret that I was not that enthusiastic about the appointment of the amici, but I have a difficult client, and I thank them for those submissions. However, I do disagree with the amici on some points, including those regarding the Government Information (Public Access) Act. I note that I filed a notice of discontinuance which should be before your Honours at this stage, and if it is not, I provided copies to the bailiff, who can distribute them to the Court.

GAGELER CJ: This is a notice of discontinuance of your cross‑appeal.

MS WOJCIECHOWSKA: Of the cross‑appeal, yes.

GAGELER CJ: So, there is no need to say anything at all about the subject matter of the cross‑appeal.

MS WOJCIECHOWSKA: Yes, and I do not intend to, except for one issue, but as it is relevant to the PPIP Act. If I could take your Honours to pages 122 to 123 of the supplement to supplement to supplementary joint book of appeal, which can be distributed by the bailiff.

GAGELER CJ: May I just ask, are we here dealing with an issue that you say arises in the appeal?

MS WOJCIECHOWSKA: Yes, it is.

GAGELER CJ: All right, and what is the issue which we are dealing with?

MS WOJCIECHOWSKA: The issue is just the illustration that it is not making orders in substitution, it is not something unique to merits review. Unfortunately, the piece of legislation I am aware of is the Freedom of Information Act 1989 (NSW), which, in section 53(3), provides that a District Court in deciding an appeal may confirm the determination of the agency, disallow the determination and any such other determination as the agency or Minister concerned might have made in relation to the application, or remit the matter to the agency or Minister concerned, to be dealt with in accordance with such order as the District Court may make in that regard. So, that is the relevance.

GAGELER CJ: Thank you.

MS WOJCIECHOWSKA: It is relevance to the PPIP Act. Your Honours, I would like to respond to some questions that the Court asked of Solicitors‑General, appellants and amici, yesterday. The first question or the issue that arose was as to the nature of conduct – what is conduct. It was proposed, I believe, by his Honour Justice Steward that this is a series of decisions being acted upon. In my submission, this is incorrect. The conduct is not a series of decisions being acted upon.

There are various examples of when this is not the case. For instance, if a person consumed a lot of alcohol, that was their decision – too much. Then they are walking down the street, and they take a wrong step and they may fall down. It cannot be said they made a decision to fall down. They act in, one can say, an erratic manner by falling down. Nevertheless, it is not a series of decisions being acted upon. They in fact did not intend to fall down. This was not their intention.

Obviously, this is what I submit, but this is another authority that I would like to take – it is not really an authority, it is an example – Administrative Decisions (Judicial Review) Act 1977 (Cth), which is again located in the supplement to supplement to supplementary book of authorities, volume 1, pages 15 to 18.

GAGELER CJ: What are you illustrating by that?

MS WOJCIECHOWSKA: This is sections 5 and 6. I am illustrating that I am not the only one who does not consider that “decision” will capture all instances of conduct. There is also administrative decisions in the Judiciary Act which provided both for review of decisions as well as conduct during review of those decisions. So, this is the extent. I am obviously not suggesting in any way that New South Wales is bound by this, but just as a general proposition that there were some people, including me, who also think that conduct is something else than just a series of decisions being acted upon.

STEWARD J: Could I ask you a question. In the context of the PPIP Act, do you submit that “conduct” would include unintended conduct?

MS WOJCIECHOWSKA: Yes, it would. “Unintended” and “intention” is not necessary, so it could be entirely omissions. Also on that point, I actually have another example. This example is related to section 12 of the PPIP Act, that is the principle about retention and security of personal information. And 12(c), what would be a contravention, because I note – even though we have been talking quite a lot about “conduct” and conduct being under review – in reality, “conduct” is further defined as contravention of the privacy principles. What would be the contravention of section 12(c)? In my submission it would be, for instance, failure to ensure:

that the information is protected, by taking such security safeguards as are reasonable in the circumstances, against loss –

That would be the contravention. So, I want to put an example to the Court. Let us say the agency is storing personal data on servers that are located in a building that is not weatherproofed and has holes in the roof. This is not a contravention on its own because there is not a loss, but let us say it rains and it floods the servers and now the only data that they held about the person was destroyed. I say now this may be a contravention.

Obviously, it would be up to the agency to show that they, for instance, took security safeguards as are reasonable in the circumstances. Unless they succeed with that, that would be now a contravention, but there actually would not be any decision to – there would be decisions – there would not actually be decisions because of the rain; this is an external factor altogether. That is what I am driving at. So, it is not only to conduct, it is not only that people or organisations that can influence the conduct, but also inanimate objects such as weather, over which we have no control.

This is, I suppose, me on the nature of the conduct and, in my submission, conduct is not a series of decisions being acted upon. It is something else. It is the mode of acting, maybe. In any event, it is not possible to substitute or replace conduct with conduct, as I put to the Court in my written submissions. Now I think I understand the proposition by the appellant better, so I think they are proposing that we replace conduct with a decision.

However, in my submission, that would be stretching the language. This is not substitution. You do not substitute. This is remedial action that is taken. You decide to do something. For instance, important data was lost in this rain and the person suffered various financial consequences as a result. There could be a decision made to pay compensation to compensate for this loss, but this is not replacement of the conduct in any way.

That takes me to the nature of merits review. Merits review, in the ordinary way – in the only way I know – is replacement of one decision with another decision. That would be an extreme, in my submission, stretching of the language, to say that this is still merits review, if someone just makes a decision to compensate for the data lost in this flooding of the servers in the stormy weather.

Now, I would like to turn to – I suppose, the point I am also driving at is that if we examine Division 3 of Part 3 of Chapter 3 of the ADR Act, it is obscure, and it is uncertain how it would apply to the PPIP Act, given section 55(2) of the PPIP Act. In my submission, for this reason, we are permitted to go to the explanatory note, which is located on pages 2028 to 2035 of the supplementary book of authorities. That explanatory note specifically provides as follows. In relation to the said Division 3 of Part 3 of Chapter 3, as it is now, that:

Subject to contrary provision being made by any relevant enactment, the function of the Tribunal on a review is to make the correct and preferable decision on the merits based on the material then before it. The Part also makes provision for the application of Government policy by the Tribunal on any such review.

In my submission, there is a contrary provision made by the relevant enactment and this is in various parts. Section 55(2), as Justice Kirk said, provides for making orders to the agency and that would be one way to demonstrate that there is a contrary provision, but there are also other sections. One section that I would like to direct your Honours to is section 52(4) of the PPIP Act. This is the section that excludes section 53 of Administrative Decisions Review Act 1997, that it:

does not apply . . . in respect of conduct to which this Part applies.

That would be a contrary intention because, in my submission, commonly in the ADR Act when we have the way Part 3 – I am sorry, Division 3 of Part 3 of Chapter III works is in relation to internal review. That is how it really works. So, the fact that it is excluded signifies that the Tribunal will not be conducting merits review pursuant to section 55 of the PPIP Act.

There is actually another section in the same Division, that is, section 66(2), which is quite a unique subsection in the ADR Act in that it is the only place where it mentions the phrase, “administrator’s decision”.

GAGELER CJ: I am sorry, what section?

MS WOJCIECHOWSKA: Section 66(2) of the ADR Act. This is the only section in the ADR Act that refers to “administrator’s decision”. In my submission, the explanation – this was, I believe, touched on by Justice Gleeson yesterday. She queried that section. This is the section that pertains, in my submission, to section 53 – internal reviews section – of the ADR Act, and it simply would not be applicable in review under the PPIP Act, because section 53 of the ADR Act has already been explicitly excluded by section 52(4) of the PPIP Act.

In relation to section 66(1) of the ADR Act, in my submission, this is also a very strong indication that the thing called “administrative review” will comprise a lot of various things that are not necessarily merits review, in that it specifically provides that the:

administratively reviewable decision takes effect on the date on which it is given or such later date –

Obviously, subsection (2), which is inapplicable – that is why there is this duality, because it shows that there can be various things that are branded “administratively reviewable decision” under the Act.

Another provision is – and this really answers also – this also goes to both – it shows the contrary intention, but also this is the part that actually would show some obscurity. This is section 53(8) of the PPIP Act. So, this is the provision that prima facie provides for notification obligations. However, it does seem also quite strange, given section 55(1) of PPIP Act, which provides for review of conduct. And I will make the submissions slightly tangential at this point, but I would have made it anyway at a later point.

In my submission, what in truth section 53(8) is doing, it is relevant to standing. Because a person will be coming, presumably, to the Tribunal and the legislature did not want just any person to come the Tribunal, this is why the administrator has to provide them with findings and course of action proposed to be taken by the agency, so that it can be readily ascertained by the Tribunal if this person has a standing, because this is something they have to be aggrieved with in order to be able to have a standing to come to the Tribunal. This is my submission on the meaning of those two subsections in section 53; that is, section 53(8)(a) and (8)(b). Application to the decision‑maker, this is under section 53. This is not something that the Tribunal is reviewing, but it serves to look if there is standing.

I already discussed how, obviously, conduct is not a series of decisions to be acted on, and that this language also signifies the contrary intention – that it is a review of conduct, and then there will be a decision made, and it cannot be merits review. It is impossible, and it is not merits review, if you decide and if you review the contravention.

In relation to merits review, in any event, one of your Honours asked the question: what is the meaning of “administrative review”? I already made my submissions in my written submissions. The main point of my submission is that “administrative review” does not mean that it is reviewed by way of exercise of executive power, but that it deals with conduct of the agency, the executive agency. But that is really just an argument about words, a little bit, I think.

What really matters is what it is – let us accept that “administrative review” is meant to mean merits review. The legislature is not unknown to name things in various ways, but it is then for the court to decide whether, in substance, the term that they create and the process they create is true merits review. So, even if I am wrong with my interpretation of words, what “administrative review” is, it has to be, in substance, merits review. Even if it were now called “merits review”, I would say the Court has to look at the substance of what was created.

Now, there is also one other provision I omitted to cite that, in my submission, is indicating – that is, the merits review provisions in the ADR Act, I am going to refer to them in this way – that there is a contrary intention. Maybe I would not go that far with this, but I am going to make this remark anyway. Section 55(3) of the PPIP Act, this is the section that says:

Nothing in this section limits any other powers that the Tribunal has under Division 3 of Part 3 of Chapter 3 of –

the ADR Act. There is a use of word “any” in this section which I looked up and, well, it means one or more. So, it does not say – the language does not necessarily indicate or does not indicate that all of those provisions in Division 3, Part 3 of Chapter 3 actually apply. It leaves it open, really – maybe at most one has to apply, and I already had one in mind that could apply – but otherwise, in my submission, this actually is an anterior question. So, before we can even say whether section 55 limits anything and how that could be impermissible, we have to look what at sections actually apply, and I will now look at Division 3 of Part 3 of Chapter 3.

So, one provision that could be surviving is section 66(1), because there is nothing inconsistent in this provision – nothing inconsistent with the PPIP Act. Section 66(2), that would not apply – I mean subsection (2), of course. The whole of section 65 of the ADR Act would not apply. But in this respect, I want to make a submission, in any event, on section 65(2). This is in response to Justice Gleeson, I believe. I am sorry, it is not this one. Actually, in response to Justice Gleeson – so, with this one, I just say it does not apply, the entire section 65. Section 66 of the ADR Act, I would say the whole section does not apply, but even if subsection (1) applied, that would not be – no, I withdraw that. The whole section does not apply.

But in respect of section 63(2), I wish to make a comment anyway. This is in response to discussions in relation to Justice Gleeson’s question. I would say that, yes, this subsection specifically would deal for the purpose. So, for the purpose of obtaining the final decision, the functions could then be – they could exercise the functions of the administrator, but not the one under section 53, in any event. However, it does not really, strictly, make sense, just as an observation because, obviously, we are reviewing conduct and not a decision. However, that would only relate to – I will call it “original decision‑maker”, although it is not, as I discussed before, because the conduct is not a series of decisions acted on. But I say it does not apply anyway.

In relation to section 64 and the application of policy, it is, it has been said to be, an indicium that can weigh one way or another as to whether the power is judicial. However, it has been held not to be decisive in any way. This is in the case of Breckler at paragraph 83. In any event, this section is nothing really extravagant because the policy would be taken – or the administrator would have to act on policy:

except to the extent that the policy is contrary to law or the policy produces an unjust decision –

So, that would be a big limitation in any event, in my submission. In my written submissions, I do refer to the case R v Brown [1994] 1 AC 212, where actually the consent was rejected by the court on the basis of the policy – consent as a defence to assault, which by the defendants was described as sado‑masochistic sex. So, this was rejected, that the consent could constitute the defence, and this is under policy grounds in any event. So, the point I am making, it is not unheard that the courts pay attention to the policy when they are able to determine what that policy might be.

Now, I would like to turn to paragraph – to the judgment of Justice Kirk. Justice Kirk refers to absence of pre‑existing rights. It is not entirely clear in the context of the PPIP Act how they are supposed to be pre‑existing, but obviously, on my submissions, the privacy principles create duties and correlative rights. However, to the extent – I understand there is also a submission by the appellant that this is something that did not exist before, this type of duties in law. Well, first of all, the Parliament can create any provisions it wishes to create. Secondly, even if it were not the Parliament, there are instances when the court created a whole new branch of law, like in Donoghue v Stevenson, where the whole law of negligence was created. It is argued by judicial scholars that it did not exist prior, so it was created in that case.

So, the argument that they are not pre‑existing before the enactment of the legislation is not persuasive, in my submission. I note that now we have multiple pieces of legislation, some of them referred to by the amici, like the Privacy Act (Cth), but there are, of course, others like Healthcare Identifiers Act 2010 (Cth), My Health Records Act 2012 (Cth), and the Health Records and Information Privacy Act 2002 (NSW). So, this is my comment on the creation of the rights and whether this is something unusual. In any event, as I say, the Parliament can create any rights or duties it wants to create, subject to the Constitution.

I would like to now turn, again, to section 55 of the PPIP Act. Yesterday, it was discussed why there is use of the word “may”. I understand this was in relation to how the use of the word “may” is usually to signify an exercise of discretion. Now I want to make submissions on this topic. “May” is indeed defined in the Interpretation Act, in section 9. It says that:

the word “may”, if used to confer a power, indicates that the power may be exercised or not, at discretion.

But the Interpretation Act also has various other provisions. So, definitions have to be read in context, by virtue of section 6 of the Interpretation Act. Section 5 of the Interpretation Act, in subsection (2), provides that the:

Act applies to an . . . instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned.

And subsection (3), this Act can also apply to portions of the Act or instrument. In my submission, because the word “may” is used to say “may not” take an action, whereas “may” is meant to indicate exercise of power where someone may take action, and then it is implied they also may refuse. And then we have another use of “may” which is followed by enumeration of various orders. In my submission, that signifies that this is not meant to indicate exercise of the discretion, but this is the list of orders that the Tribunal has to make – one of those. However, I note that section 55(2)(g) is quite open, because it refers to “ancillary orders” – and I may mispronounce this word, but I hope I do not.

The reason why this is not as trivial as it sounds – what I am saying, that this is a list of orders – is if we go back to Division 3 of Part 3 of Chapter 3 of the ADR Act, we have various provisions – for instance, section 63(3), that provides for various modes of what the Tribunal may decide. So, it has various versions. They can:

affirm the administratively reviewable decision –

“vary”, “set aside”, or they can send it back to the administrator. For this reason, I say 55(2) of the PPIP Act provides a finite list of orders and it is also inconsistent with section 63(3)(d) of the ADR Act.

EDELMAN J: Can I just ask you a question about subsection (g). Mr Free accepted that in making orders under subsection (2), some of the decisions that have been made on the internal review could be taken into account, like the ordering of an apology or something like that. If an internal review had, say, ordered compensation and the Tribunal was not satisfied that the compensation was necessarily enough, under subsection (g), could they send the matter back to the internal reviewer to award more compensation?

MS WOJCIECHOWSKA: No, because it is not merits review. That is what I say. I suppose “ancillary” means something to support the main powers and that would not be, in my submission, in support of those main powers in subsection (2)(a) to (f). This is why.

But on this topic actually – and I am very sorry it is a bit disjointed, but I just want to address issues that arose yesterday. I think it was Justice Edelman, his Honour asked about – that is just my understanding – when the Tribunal would not order compensation. One answer was, this would be to avoid double compensation, with which I agree, but I also want to provide another scenario.

That is again, I think, a jurisprudential scenario where a person suffers harm but, as a result of whatever happened to them, they actually become better off financially – they become a celebrity, and then they are better off. In that case, the court could refuse compensation because there simply would not be anything to compensate for. Now, I would like to deal with section 69 of the PPIP Act. So, in my submission, the exception created to this statement by the Parliament that:

Nothing in Part 2 or 3 gives rise to . . . any civil cause of action –

the exception is in sections 21 and 32 of the PPIP Act. My opposition submits that because, for instance, in section 21 there is subsection (1) and subsection (2), and subsection (2) creates or provides that Part 5 of the PPIP Act applies to the contravention, that this means that there is no civil right. But that assumes that Part 5 is really merits review. So, I just want to state my definition of “civil cause of action” that I want to submit as correct to the Court, that it would be something that is not criminal, and also excluding merits review, which is exercise of executive power.

Ultimately, I made some submissions in my written submissions about breach of statutory duty. The way there could be breach of statutory duty would be if there was civil cause of action, so it would not have to be – or civil right. I suppose this takes me back, that it has to be – even if the construction by the State is correct, and really this is the only pathway to go down, Part 5 – even if they are correct, still, the Court has to look at what is – I suppose it takes me back to my former submission, what this administrative review is, whether it is really merits review. Because if it is, as I submit, not merits review, then this actually is a civil right, or civil duty, or civil cause of action that was just given to the Tribunal.

I note some submissions were made how I would not have a recourse to even, possibly, prerogative writs of any kind. Well, I would say that this would only strengthen my case, because that would mean that the only way I can pursue those rights is by way of Part 5. So, these are not really submissions not in my favour. But, in any event, I just want to note that in the case I rely on in my written submissions, Zistis v Zistis, the Supreme Court case, Zistis v Zistis [2018] NSWSC 722. And it is not only this case that, really, I rely on, it is just the existence of inherent jurisdiction. Just because there is an ability to go and ask the court to exercise its inherent jurisdiction, that would not be an argument against Part 3 creating civil cause – or depriving me of access to the court, a Chapter III court.

In my submission, that would not be. Unfortunately I do not have a reference for this, but there is case law that remarks to this effect which I could provide after my submissions.

GAGELER CJ: We are generally familiar with that line of cases, thank you.

MS WOJCIECHOWSKA: Yes. One more submission – this is in relation to whether orders by NCAT are binding. In relation to section 78 of the CAT Act, in my submission, section 78(3), this subsection actually – obviously, it deals with enforceability, it is an enforceability provision. In my submission, this actually presumes that the order is binding. It is contained in the subsection (3), that it is presumed that such an order is binding.

Also, quickly, in relation to the Crown Proceedings Act, section 7, as was discussed with the amici yesterday, the Court asked whether one could then pursue the Treasurer with mandamus. So, perhaps, but there is a better way of pursuing the Treasurer, in my submission, and that is section 73(2) of the CAT Act. That is, for being guilty of contempt of the Tribunal.

Those contempt provisions, as they apply to the PPIP Act and, in my submission, section 73(2) would apply, these are provisions that were absent in the Administrative Appeals Tribunal, for instance. So, this is a big difference. They go to whether an order is binding. And whatever the mechanism, even of contempt proceedings – it may be imperfect, but it is there – it is coercive power of the Tribunal, given to the Tribunal as well. In my submission, that shows also that the orders are binding, so it is not only section 78 that – section 78 shows the presumption that they are binding, that it proceeds on the understanding that they are.

Obviously, there is also section 55(2)(g) with ancillary orders. That, in my submission, when read in conjunction with the Civil and Administrative Tribunal Act, which defines “ancillary decision” in section 4 of CAT Act – I am sorry, in section 30(2) of CAT Act – which provides for ancillary decisions, defined as decisions:

(other than an interlocutory decision –

but they also are not considered as final, these would be orders:

preliminary to, or consequential on, a decision determining proceedings –

Now, it is undisputed in this case that the New South Wales Police Force is an emanation. So, this is what I would say is my response to yesterday’s arguments.

GORDON J: This at paragraph 4 of your oral outline?

MS WOJCIECHOWSKA: Yes, that is right.

GORDON J: Thank you.

MS WOJCIECHOWSKA: What I say is that the proceedings commenced under section 55. They are a matter. This is because they do determine the justiciable controversy and will provide a binding order. As mentioned, there is this coercive power given to the Tribunal. This is in the “contempt” sections of the CAT Act. The determination would determine the liability for the contravention.

I also say, I understand that the argument is that there is no matter because there is merits review. I say that if there is no merits review, there is a matter. This is on the assumption that the initial statement is correct. I will now turn to consideration of why the power is judicial. In my submission, there are three main indicia of whether the power is judicial. One would be whether the orders or the decision is binding – has binding force and effect. There is also section 72(3), which imposes a civil penalty and, of course, section 78(2).

There is one case, the case of Mirvac Homes (NSW) Pty Ltd v Noakes [2022] NSWSC 596. This is a matter arising under the Agricultural Tenancies Act where the Tribunal made an order for possession, however, the issue was whether the Tribunal could also issue warrant for possession. The Tribunal refused to do so, and the matter had to go to the Supreme Court of New South Wales. The Supreme Court of New South Wales found that, by operation of similar provisions – similar to the ones in section 5(2) of the PPIP Act – including ancillary orders provisions, they could issue a writ for possession.

So, in my submission, even if section 78 were inapplicable for some reason, still that section 55(2) contains everything that is necessary, including issuing some enforcement action. Another case I rely on in relation to that is case of Grassby, in which it was stated that:

the grant of power carries with it everything necessary for its exercise –

It is Grassby v The Queen (1989) 87 ALR 618. So, also in my submission, although it is not necessary, by virtue of section 55(2)(g), there would also be some implied powers.

To move on to another indicium, one should, as per the judgment in Breckler, turn to nature of the tasks. And, as mentioned, the NCAT is determining whether there was a breach of duties in sections 8 to 19. As I discussed before, this relates to pre‑existing rights and obligations. But if this is not strictly necessary, there can be a claim of right or obligation, and that would be a marker as well – or a duty.

One important factor that is also one of the three important primary indicia in this case is deprivation of access to the courts – by this, I mean the State courts. So, in my submission, this is the scheme, as I mentioned, that really takes away access to the Chapter III court for me and anyone. After the decision at the division level is made, the only way to go ahead or to challenge that is to seek a review with the appeal panel.

So, obviously the appeal panel, it is really quite inconceivable how that could be conducting any merits review, because it actually can only review questions of law and not questions of fact. So, that is quite inconceivable. But, in any event, then the only pathway to have that reviewed is with leave of the Supreme Court. I rely in this respect on British Imperial Oil Company Ltd v Federal Commissioner of Taxation [1925] HCA 4; (1925) 35 CLR 422, that this would be an exercise of judicial power, because they are in the place of the court.

Now, there are also some secondary indicia that I derived from Luton’s Case. I will briefly address them. In my submission, the exercise performed by NCAT requires independence and tenure enjoyed by judges. This is for various reasons: the agencies, obviously – in fact, NCAT is the agency of the State, of the Executive, and so is the agency whose actions are being reviewed. Some orders that would award compensation, they would be the ostracism of the agency.

So, that could be tempting for the New South Wales Government to use its powers and influence to resist these types of judgments. That places, as per the test, the adjudicators in a position of unilateral susceptibility to the agencies. But, also, the PPIP Act is an important safety control that was imposed on the agencies, and they were imposed to address deficits in legal frameworks. In the parliamentary debates, that I referred to in my outline of oral submissions, which are located on supplementary book of authorities, volume 7, pages 2329 to 2330, there is a mention of, actually, illicit trade in information that was occurring in New South Wales at that time. This is premised, I think, on 18 November 1998.

And also, another important reason for implementation of those protections was the principles protecting data in the European community. This authority is not before your Honours – I could hand it up – General Data Protection Regulation 2016, Article 45. That imposes obligations in Europe on data administrators, whether they can even share data if the other third party does not have sufficient protections. The reason why I am saying this is – there are two reasons really.

In my submission, these types of principles require judicial independence but also, in my submission, there is quite clear language in the legislation that defines “administratively reviewable decision” as conduct and speaks of orders to the Tribunal. So, these were serious considerations that informed the Parliament, and the Court should not depart from this clear language to change them just into guidelines, because that would also have effect on matters of government such as international trade, if they were changed to guidelines.

In my submission, I doubt very much that that would be sufficient protection envisaged by Parliament when they passed that, to bring Australia to the same level as the international community. Obviously, the exercise undertaken by the NCAT requires findings on disputed facts and application of the law. As mentioned, for instance – actually, not mentioned – the Tribunal can refer questions of law to the Supreme Court of New South Wales, and, in my submission, it is inherent in this discretion that otherwise, obviously, NCAT can decide questions of law, and it does on appeal from the division.

The exercise involves reference to not standard sets of criteria, at all, which indicates that it requires a judicial approach to the matter. In fact, the decisions by NCAT serve as precedents. They frequently are quoted in decisions, as outlined in my written submissions, as precedent or persuasive decisions. That is at paragraph 73 of my written submissions.

In my submission, the breach – the determination whether there is liability for a breach – this is actually an exercise traditionally undertaken by the courts. I just have some examples, such as section 18 of the Australian Consumer Law, for instance, where that what is being determined. Obviously, there are some other features, such as the ability by NCAT to impose relief in the nature of prohibitory and mandatory injunctions, and also power to make costs orders.

However, my overarching submission is that, actually, Division 3 of Part 3 of Chapter 3 of the ADR Act does not apply. So, this submission – they just picked the features of judicial power, in my submission, but what happened to me, when I first came to the District Court of New South Wales, the Judicial Registrar suggested to me that it was a hybrid jurisdiction or power ‑ ‑ ‑

GAGELER CJ: We do not need to go back into the history.

MS WOJCIECHOWSKA: No, no, but I just want to say that, in my submission, it is not hybrid.

GAGELER CJ: Yes.

MS WOJCIECHOWSKA: That is what I want to say.

GAGELER CJ: Thank you.

MS WOJCIECHOWSKA: And it is not hybrid because the provision, the merits provision, do not apply. This is the main gist of my submission, that they do not apply and, therefore, there is actually no hybrid power or jurisdiction created by the PPIP Act.

Now, in relation to section 78 of the CAT Act and the argument of the State that the agency is not a person, I want to draw the Court’s attention that all that is required is identification of a person and, in my submission, in this case, this person – the entity – would be the State of New South Wales, which would fall within the definition of the person in the Interpretation Act – or body politic. The Registrar possibly could do it in two ways, either by identifying the person as the State of New South Wales, or even the Commissioner of Police, because it would be self‑evident that this is an emanation of the State of New South Wales.

I suppose – I am just about to finish my submissions – I still would like to go back – maybe I would like to address Brandy. I am not actually entirely sure if I understand this argument by the appellant and the Commonwealth correctly, but it is true that Brandy dealt with federal judicial power, and the remedy in that scenario was to strike out the offending provisions that allowed registrability with the Federal Court. But here, the scenario is different, so it is true – well, in my submission, in my case, the power exercised is federal, but there are many other cases where it would not be the case. I believe, at the very least, this is what the State suggested to Justice Kirk in the Court of Appeal, that 78 should be read down or struck out, that this should be the remedy.

In my submission, no. This is actually the case, because that would mean that there is some set of markers, or cases – let us call it – where they would not – there would be no – well, in my submission, there still would be provisions that would go and allow for enforceability, but it would make it more difficult, because a person would have to convince the Tribunal.

So, there would be, kind of, two types of streams. One, the State one, that would not be disturbed by Brandy, and the other one – me in it – would not have section 78 to turn to. In my submission, this is where, actually, Part 3A of the CAT Act is activated, and by virtue of that, I should be allowed to go to – or granted leave – at the District Court or a Local Court, under Part 3A.

I would really be content, I think, to finish at this point, subject to, obviously, that I rely on my written submissions as well.

GAGELER CJ: Of course.

MS WOJCIECHOWSKA: Thank you.

GAGELER CJ: Thank you, Ms Wojciechowska. Mr Lim, we will take your reply after the luncheon adjournment.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.14 PM:

GAGELER CJ: Mr Lim.

MR LIM: Your Honours, the character of the Tribunal’s function depends, of course, on an anterior ascertainment of the incidence of that functioning. What are the incidence of the function is, of course, a question of statutory construction. One of the most basic principles of construction, repeatedly emphasised by this Court, is that statutory purpose or legislative intention resides in the text and structure of the statute and it is illegitimate to discern legislative intention from what the Court has previously called a priori assumptions.

At the heart of the submissions of the amici curiae, especially pages 65 to 76 of yesterday’s transcript, is an impermissible a priori assumption to the effect that the permissible extent of administrative merits review is coextensive with what my learned friend called the core concept or traditional concept of merits review. The first respondent today made a similar submission.

Drawing on the operation of merits review schemes as they apply in different regulatory scenarios, the submission was to the effect that review under Part 5 of the PPIP Act does not conform to the so‑called core or traditional concept. Rather than starting with the text of this legislation and seeking to give meaningful operation to each part of the scheme, the amicus curiae instead start with their exogenous concept of merits review and then use it to conduct radical surgery on Parliament’s drafting, surgery more orthopaedic than cosmetic, in order to preserve the perceived purity of their exogenous conception of merits review.

Now, if the terms of the debate were simply whether the Tribunal’s function has strayed beyond the permissible limits of administrative power so that the Act could be said to be incorrectly applying a label of administrative review to something that was not, in substance, administrative review, then that is a debate that could be had. But the argument against me as developed yesterday and today goes much further than that. The argument is that the substance of the ADR Act simply does not apply to a review under the PPIP Act. On the construction advanced by the amicus and today by the first respondent, most of the provisions in sections 63 to 66 of the ADR Act are said simply not to apply.

That submission is not grounded in the text and, indeed, as I will come to, it is inconsistent with the text. It is, truly, driven by the notion that there is a core or traditional conception of merits review beyond which one is compelled to say the provisions do not apply. That is the erroneous a priori assumption, contrary to well‑established authorities of this Court.

The text, in my submission, is clear that the ADR Act does apply in more than a trivial way. If your Honours would go to section 55 of the PPIP Act, there was raised in argument by your Honour Justice Gleeson yesterday, subsection (3). The amicus and first respondent seek to sidestep that provision by submitting that the reference to “any other powers” might be a concept without any substantial content. That submission invokes a logical or sematic meaning of “any” without confronting the obvious legislative intention that it was intended to have some content.

But, more fundamental than subsection (3) – and which, perhaps, received less attention in argument yesterday – is subsection (1). The person’s right under subsection (1) is to apply for an administrative review under the ADR Act. Section 55(2) enumerates powers for the Tribunal only on reviewing the conduct of the public sector agency concerned – that is, on conducting the review under the ADR Act.

STEWARD J: Can I ask you whether your case goes this far, in terms of reconciling section 53(8) and 55(1), that what the Tribunal is really doing here is redoing the internal review – and it does that – and that is what 51(1) is talking about, the underlying contravening conduct, because it is saying to the Tribunal: like the person who did the internal review, you are going to redo that internal review by looking at that underlying conduct, and your decision, in that sense, will substitute that of the decision on internal review. Is that how you would put it?

MR LIM: I accept that is one way of conceptualising what is going on. The precise categorisation of the decisions is not essential to the characterisation of the Tribunal’s function. Section 55(1) is directing the Tribunal to look at what I will call the original conduct. But section 53(8) recognises that in this administrative continuum, that conduct may have moved on, by virtue of ‑ ‑ ‑

STEWARD J: But we do have a decision here. It is the decision by the internal reviewer to make findings and recommend either relief or no relief.

MR LIM: Yes. And in any given case, the action may or may not have been taken. Probably, on an internal review, it will have been taken, because it is the agency itself just deciding to do something, and 53(8) recognises the practical reality of that at an administrative level. But the Tribunal is told by 55(1) to look at the original conduct.

STEWARD J: But, in a sense, standing in the shoes of the internal reviewer.

MR LIM: Well, certainly standing in the shoes of the agency, which is both the original decision‑maker and the internal reviewer.

STEWARD J: Yes, the internal reviewer and the agency – yes, I remember, the agency does the relief.

MR LIM: Yes.

STEWARD J: Yes, I understand.

EDELMAN J: You read the words “of the conduct” in section 55(1) really as being concerning the conduct.

MR LIM: I am sorry, I did not hear the last bit.

EDELMAN J: As meaning: concerning the conduct. The word “of” is not a limiting word, it is a relating word. If it were a limiting word, one would not then look at anything that was done by the internal reviewer; it would be “of the conduct”, which is the essence of the amici’s submission against you. As I understand your submission, “of” is really read in the sense of concerning the conduct.

MR LIM: Yes, to the extent that that allows the Tribunal to look at the practical reality that the agency’s conduct may, by virtue of the internal review, have moved on, yes.

GORDON J: And you say that construction either assisted by or at least supported by 53(8)?

MR LIM: Yes.

BEECH-JONES J: So, do we get this – with 55(2), the discretion as to whether to decide not to take any action or to make one of the following orders takes into account what the agency determined under 53(7) and then did?

MR LIM: Yes.

GLEESON J: How does what you have just said to Justice Gordon fit with the language in subsection (2) – “on reviewing the conduct”?

MR LIM: Because the conduct of the public sector agency concerned will, for the reasons discussed in answer to the previous questions, include conduct of the agency in conducting the internal review.

EDELMAN J: It has to, because it is accepted, for example, if the agency awarded $20,000 in compensation, you do not ignore that and give another $20,000.

MR LIM: Quite.

BEECH-JONES J: So, the conduct of the public agency concerned in (2) is a wider concept than the conduct that was the subject of the application under section 53(3) in (1)?

MR LIM: Yes. In my submission, the argument of the amicus is irreconcilable with the conferral of jurisdiction by section 55(1) and the submission attributes no purpose whatsoever to the words which provide a right to review under the ADR Act.

My learned friends’ submission is also in substantial tension with section 30 of the Civil and Administrative Tribunal Act from which he tried to obtain some support. If your Honours would look briefly at that section again, contrary to Mr Free’s submission, subsection (2)(b) supports my construction, because it makes clear that the Tribunal’s jurisdiction is derived from the ADR Act, but includes:

functions . . . conferred or imposed on the Tribunal by –

other enabling legislation such as, in our case, section 55 of the PPIP Act. So, it is another indication that the powers in section 55 have to be understood within the overarching jurisdiction that is described by the ADR Act.

A stark illustration of the outcome of the erroneous approach adopted by the amicus is his submission about section 63(1) of the ADR Act. Mr Free submitted that the standard of “correct and preferable” would mean something different in a PPIP Act review from what it means in other contexts and, in particular, his core or traditional concept of merits review. But that submission assumed, without demonstrating, that there was no room for the Tribunal under the PPIP Act to apply the “preferable” part of the “correct and preferable” standard, but that is not so.

Once the Tribunal decided, for example, that an agency’s security systems fell short of what reasonableness required in the circumstances, it could go on to decide what different security systems should instead be adopted and, in that exercise, could legitimately make a choice from a range of available possibilities, no one of which was more correct than the other, but one of which may be preferable.

So, to say that “correct and preferable” must mean something different in the PPIP Act context is simply to assume that the Tribunal’s function is not within the so‑called core or traditional concept of merits review. And, once again, it is that a priori assumption that is driving the constructional exercise contrary to principle.

One particular of the PPIP Act which was said by my learned friend not to conform to the traditional notion of merits review – I say, by my learned friend, but also by the Court of Appeal, I will acknowledge – was that section 55 authorises the Tribunal to make orders directed to an agency. The GIPA Act was put forward as an example of the core or traditional, notion of merits review. I draw attention to paragraph 45 of our written submissions, which contain some references or illustrations to the Tribunal’s practice in decisions under the GIPA Act of ordering agencies to conduct further searches for documents or to order an agency to give production of information.

No one suggests that those kinds of orders cannot sit comfortably within a notion of administrative merits review, but that they illustrate the point that it is inherent in the possibility of reviewing conduct that the Tribunal is not likely, itself, to be able to engage for itself in the correct or preferable conduct, but will have to identify what that correct and preferable conduct is, and, in some form, to tell the agency that that is what is to be done.

GAGELER CJ: What is the source of the power to make the orders that you have given as illustrations – what is the statutory source of that power of the Tribunal?

MR LIM: It is different from section 55. There is not a provision that says that the Tribunal may make orders to conduct further searches. It seems to be a practice that is dependent on the ADR Act as applied to GIPA Act reviews.

GLEESON J: Is it something about varying the decision?

MR LIM: It is deciding – it is a scenario where an applicant has sought production of government information that has been refused or told that it does not exist. And the Tribunal, conducting an unexceptional merits review of that decision, forms the view that sufficient searches have not been undertaken or that the exception claim is not made out and the document should be produced.

The Tribunal is standing in the agency’s shoes in working that out, but it cannot produce the document, necessarily, unless it has been given to the Tribunal and then passed on to the litigant. But there is just nothing conceptually awkward at all, from a merits review perspective, of a tribunal saying what should be done is the document should be given and then telling the agency to do it.

GAGELER CJ: Well, I mean, I can see how that could be readily fitted within section 63(3)(d), or at least arguably.

MR LIM: Yes.

GAGELER CJ: Is that what you have in mind?

MR LIM: It may be (d), but it may also just be within (c) or (b), given the extended definition of “decision”, which includes conduct.

GAGELER CJ: I see.

MR LIM: The reason that (b) and (c) might be necessary is that (d) does contemplate a need for some reconsideration by the administrator, so if the Tribunal has decided that something should be done and there is no room for any substantive reconsideration, it might actually better be characterised as the Tribunal having substituted the decision for itself.

GORDON J: There is nothing precluding a decision incorporating both elements (c) and (d).

MR LIM: No, quite.

BEECH-JONES J: Mr Lim, as to a – I will call it a standard case, where there has been a past breach of the principle, some harm, there is no ongoing, as it were, problem. Which step does the Tribunal take in that case, under (3)?

MR LIM: If I have understood the hypothesised scenario correctly, it is (b) and/or (c). So, the notions of varying or substituting past conduct ‑ ‑ ‑

BEECH‑JONES J: So, how do they vary the past conduct? Somewhere in the past there was a leak, as it were, that has now been fixed, some redress has happened, it comes to the Tribunal, someone is not happy with, say, the redress that was ordered on the review under 53. What step does the Tribunal then take, if 63(3) is engaged?

MR LIM: If the Tribunal’s decision is that additional redress ought to be given because that restores the person to the position they would have been in if the correct and preferable conduct had been undertaken, then, on my argument, that is still within the conception of a variation or substitution of the original conduct.

STEWARD J: The alternative is, as I said before, that the administratively reviewable decision is the decision on internal review by the reviewer and the agency, and that is what 53(8) is telling you, but that necessarily requires you to do what the internal reviewer did and look at the underlying contravention of conduct.

MR LIM: Yes, with respect, I embrace that as another possibility.

STEWARD J: So, you are varying that decision, or substituting that decision?

MR LIM: Yes.

BEECH-JONES J: But if it is not that, it is just past conduct. I am still wondering how one affirms it, or varies it, or sets it aside. It is, as it were, spent. If the concept of decision, there, is the decision as the subject of 53 – sorry, the conduct is the conduct the subject referred to at 52(1), how does one set aside or vary or affirm that?

MR LIM: I think the conceptual difference can be dissolved in this way. A decision, in the core or traditional sense, has ongoing legal effect.

BEECH-JONES J: It does.

MR LIM: And so, in that scenario, there is sense in saying: I affirm the decision, or I vary its ongoing legal effect. Even on the hypothesis that your Honour is putting to me about past conduct that is spent, the premise of the Tribunal deciding that anything at all needs to be done is that that past conduct is having ongoing consequences. And so, it is attention to the ongoing consequences of the past conduct, just like attention to the ongoing consequences of a decision made in the past that that engages the notions of affirming, varying or substituting.

BEECH-JONES J: Or, to put it this way, can you make an order under 55(2) of the PPIP Act without taking a step under 63(3) of the ADR Act, on your construction? If you need to take that on board, please do so.

MR LIM: No, on my construction, section 55(2) is explicating the ways in which the more generally expressed powers in section 63 are to be carried out, and that flows from 55(1), which tells you this is an administrative review under the Act; then 63(1) of the ADR Act tells you, therefore, in any such review, you are to decide what is the correct and preferable decision. And it is only within that framework that one would come to ‑ ‑ ‑

EDELMAN J: If you did not have section 55, you would get to that result under section 63 by saying, well, if no decision had been made or a decision had been made that did not address the conduct simpliciter, 63 gives you power to substitute for the absence of that part of a decision or the absence of the decision itself.

MR LIM: Yes. And there is also the point that I made yesterday, that 63 actually picks up the powers conferred on the agency for the purposes of internal review. So, even without 55, you would have all the same powers, and 55 is explicating and, in some ways, regulating those powers.

GAGELER CJ: Is your argument any worse if you go from section 55(1) of the PPIP Act to section 63(1) of the Administrative Decisions Act? Then, in performing that review, or as an outcome of that review, there are two sources of legally operative decision‑making power. One is section 63(3), which uses the word “may” – you do not have to make any of those sorts of decisions – and the other is 55(2) of the PPIP Act. Here, I am just suggesting to you that 55(2) might be just seen as an additional and alternative source of power in performing the function that you say is engaged by section 51(1), taking you to section 63. I am sorry, that was a very long question.

EDELMAN J: The problem with that is that all that you would have to encounter, deal with, is that 63 – if it is a separate source of power, then it would not be governed by any of the limitations in 55, would it?

MR LIM: I will answer the questions in reverse order. It could be a separate source of power but nonetheless one to be read consistently with the concurrent and narrower powers.

In answer to your Honour the Chief Justice’s question, my argument is no worse if they are separate, subject to one proviso and qualification that I will frankly raise, that if they are separate, I would still submit – and need to submit – for my section 78 argument that an order made under section 55(2) would nonetheless bear the character of varying or substituting the original decision because it is that character of the Tribunal’s orders – varying or substituting the decision – that engages the deeming provision in section 66, which is one limb of my argument as to why section 78 does not apply.

GORDON J: Has the answer to those questions taken into account your earlier analysis of section 55(3)? That is, the intersection between the PPIP Act and the ADR Act Part 3?

MR LIM: I am not conscious of it not taking that into account but ‑ ‑ ‑

GORDON J: Okay, that is fine. Then the only other thing I would ask is that, of course, does not – as I understand your answer – not preclude the importance of 63(2). That is, exercising the functions question under the ADR Act.

MR LIM: No, it does not undermine that.

GORDON J: Thank you.

MR LIM: Your Honours, that brings me to two small points on section 78 of the CAT Act. First, on the naming of the person in the certificate given by the Registrar, the submissions of the amicus and the first respondent have responded to a point not made, or at least not a complete version of the point I do make.

Their submissions pointed out that there would always be a person, possibly the State itself, ultimately identifiable as liable to pay damages ordered against a public sector agency. But my point has another aspect not satisfactorily answered, which is that the task of identifying who that person is in any given case is not necessarily a straightforward or mechanical one and therefore not one that a Registrar of NCAT would likely be supposed to be intended to undertake.

The second point on section 78 is that we respectfully embrace your Honour Justice Gordon’s identification of the distinction between section 78 and the mandatory registration provisions in Brandy’s Case. We say that although section 78, like the mandatory provisions in Brandy’s Case, will not involve an independent exercise of judicial power, nonetheless, the option of taking or not taking the step of registration means that the facility is one step removed from the function of the Tribunal that falls to be characterised.

Secondly, it also supplies the room for the question to arise whether section 78 is even intended to apply because of an expectation that the order would be complied with without the need for anyone to take the optional step. Your Honours, I will now briefly reply to the submissions of the Commonwealth.

BEECH-JONES J: What is your response to the amici’s submission about the contempts power and 72(3) of the CAT Act?

MR LIM: Yes, it is significant that both of those facilities require an independent exercise of judicial power. So, in the case of contempt, NCAT has power to punish only contempts in the face of the Tribunal for breaches of orders. It does not have those powers, and I think subsection (5) contemplates referral to the Supreme Court.

BEECH-JONES J: And with the other provision you would say, well, it is a penalty provision and someone has to enforce it.

MR LIM: That is so.

BEECH-JONES J: I see.

MR LIM: In response to the Commonwealth, is there an undecided question about the scope of Burns v Corbett? In our submission, clearly yes, not least because both Burns and Citta Hobart involved a non‑court exercise in judicial power in a matter. So, on the question of State legislation purporting to confer judicial power in a non‑matter, the only case pointed to is the Queen of Queensland Case, but there is clearly a debate explicit in the reasons in Burns and acknowledged by the Solicitor‑General this morning about what that case stands for.

At the very least, there is a world of difference between the status of a judgment of the Judicial Committee of the Privy Council – especially as perceived in 1975 – and a State tribunal. That is something that would no doubt be argued if and when a State sought to confer an advisory jurisdiction on a tribunal.

Indeed, if it is accepted that enforcement by registration is not, of itself, sufficient to characterise an anterior function as judicial, then it has proved very difficult for anyone to identify examples of judicial power being exercised in a non‑matter. And if the advisory opinion is the only example, then any pronouncement about the validity of that example should await a case in which a State Parliament has actually attempted to do it. To do otherwise would, ironically, be an advisory opinion divorced from any attempt to administer a law of that kind.

In paragraph 19 of the Commonwealth’s written submissions they submitted that no weight should be given to the precise formulation of the implication in paragraph 1 of the decision in Citta Hobart. The basis for that submission was that the point was not argued in Citta Hobart. The Commonwealth, in my submission, cannot, in effect, have it both ways and seek to discard the distillation of principle in paragraph 1 of Citta Hobart while maintaining that the broader point, not stated anywhere except in one of the subjects in Burns v Corbett, has been settled.

Briefly, on the substance of the point, even though it is unlikely to arise, it seemed to be worth noting that the Solicitor‑General embraced the outcome that on the Commonwealth’s wider view of the implication there is a total lacuna of legislative power in relation to judicial power in non‑matters on topics in sections 75 and 76. And there is something inherently suspect about a structural implication based on allocation of powers in a federation giving rise to an area where no Parliament can act.

Implications which deprive any legislature of power would usually find some justification in values concerning the relationship between citizen and State. And when one asks what are the potential individual rights at stake in this field, in my submission, it would be the right of the individual to have courts, in the constitutional sense, finally determine their legal rights, duties and liabilities. Our interpretation of the Burns v Corbett implication coheres with those features of a structural implication and the Commonwealth’s does not.

EDELMAN J: There may also be differences, if the point ever arose, between an advisory opinion given by a State court within what might have been thought to be the sphere of State power over or relating to interstate residents and an advisory opinion given by a State court on the Constitution or Commonwealth legislation.

MR LIM: Yes, I respectfully agree, your Honour. Your Honours, there was a procedural point, separate from our reply, that I was going to come to now, to conclude. Can I just draw to the Court’s attention that there was filed in the proceeding by the first respondent yesterday an application that has not been dealt with.

GAGELER CJ: Well, it has not been pursued, has it?

MR LIM: It has not, but I did not want, in the circumstances, to take advantage of that procedural point. I can say nothing more about it.

GAGELER CJ: No application has been pursued before us.

MR LIM: May it please the Court.

GAGELER CJ: Thank you. The Court will consider its decision in this matter and will adjourn until 10.00 am tomorrow.

AT 2.47 PM THE MATTER WAS ADJOURNED