Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191 Hearing dates: 24 April 2023 Date of orders: 17 August 2023 Decision date: 17 August 2023 Before: Mitchelmore JA at [1]; Kirk JA at [2]; Griffiths AJA at [152] Decision: Matter number 2023/53137: (1) The plaintiff has leave to amend prayer 1 of the amended summons filed on 26 July 2022 so as to: (a) add the following text between "2022/00123205" and "because" in the chapeau of the prayer: ", and grant relief in the nature of prohibition accordingly,"; and (b) add as subparagraph (ii) the words "the conferral of administrative power in respect of the matter listed in s 75(iv) of the Commonwealth Constitution is invalid". (2) Declare that the Civil and Administrative Tribunal had and has no jurisdiction to determine the claims made by the applicant in proceedings number 2019/382033 and proceedings number 2022/194626. (3) Prayer 1 of the amended summons is otherwise dismissed. (4) If either side seeks an order relating to the costs of the proceedings before this Court other than that proposed at [149] of this Court's judgment then they may file and serve submissions of no more than three pages, along with any supporting materials, within five business days of these orders, with any reply submissions of no more than one page to be filed and served within a further two business days. Matter number 2022/295461: (1) The proceedings are dismissed. (2) If either side seeks an order relating to the costs of the proceedings before this Court other than that proposed at [149] of this Court's judgment then they may file and serve submissions of no more than three pages, along with any supporting materials, within five business days of these orders, with any reply submissions of no more than one page to be filed and served within a further two business days. Catchwords: CONSTITUTIONAL LAW — Federal jurisdiction — Diversity jurisdiction — Dispute between a State and a resident of another State — Jurisdiction of NSW Civil and Administrative Tribunal — Proceedings were of a kind falling within ss 75(iv) of the Constitution — Nature of the Burns v Corbett restriction CONSTITUTIONAL LAW — Federal jurisdiction — Government Information (Public Access) Act 2009 (NSW) — Reviewable decisions — Whether Tribunal exercising judicial power — Where reviewable decisions involve governmental administration — Where administrative schemes involve legal criteria — Where Tribunal is not enforcing pre-existing, distinct legal rights — Where Tribunal bears features characteristic of administrative tribunals in Australia — Where Tribunal's task is to undertake merits review — Where tribunal is exercising non-judicial power — Burns v Corbett restriction does not apply — Powers may be validly exercised by the Tribunal in proceedings which, otherwise, would fall within federal jurisdiction CONSTITUTIONAL LAW — Federal jurisdiction — Privacy and Personal Information Protection Act 1998 (NSW) — Where context of the Act for government record-keeping is administrative — Damages sought under s 55(2)(a) of the Act — Damages is a remedy characteristically and historically awarded by courts — Where the Tribunal is making orders directed to the agency, rather than in lieu of the agency's own decision — Where order made under s 55(2)(a) is to be certified under s 78(1) of the Civil and Administrative Tribunal Act 2013 (NSW) — Where the decision of an administrative body is given the effect of a decision of a court — Where exercise of judicial power if and when such an order is sought — No occasion to read down or sever s 78 — Burns v Corbett restriction applies Legislation Cited: Administrative Appeals Tribunal Act 1975 (Cth) Administrative Decisions Review Act 1997 (NSW), ss 7-9, 63, 64, 65, 66; Ch 3; Pts 2, 3 Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW), ss 13, 16, 17, 27(1)(a), 28, 32, 33, 34B(1), 34B(2), 38, 48, 52, 54, 72, 73, 75 ,77, 78, 80, 81, 83(1); Pt 3A; Sch 3 cl 3(1)(a), cl 9(1) Commonwealth Constitution, ss 71, 75, 76, 77 Freedom of Information Act 1989 (NSW), s 53 Government Information (Public Access) Act 2009 (NSW), ss 3, 4, 9,12-15, 41(1), 51, 51A, 54, 57, 58, 59(1)(d), 59(1)(e), 60(1)(b), 60(3), 64-71, 72, 80, 84(1), 100, 102, 106(1), 110-112, 127; Pts 2, 4, 5; Sch 1 cl 1, 2, 4, 5; Sch 4 cl 10 Interpretation Act 1987 (NSW), s 31 Judiciary Act 1903 (Cth), s 39 Ombudsman Act 1974 (NSW), ss 26(2)(d1), 26A Privacy and Personal Information Protection Act 1998 (NSW), ss 8-14, 16-18, 20(2)(a), 21, 29, 30, 31, 32, 38, 39, 49, 50, 52, 53, 55, 63, 66, 69; Pts 3, 4 Supreme Court Act 1970 (NSW) ss 48, 69 Cases Cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board (2007) 231 CLR 350; [2007] HCA 23 Alexander v Minister for Home Affairs (2022) 96 ALJR 560; [2022] HCA 19 Attorney General for New South Wales v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254 Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542; [2008] HCA 2 Attorney-General (Cth) v Breckler (1999) 197 CLR 83; [1999] HCA 28 Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 Attorney-General for State of South Australia v Raschke (2019) 133 SASR 215; [2019] SASCFC 83 Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; [2015] HCA 7 Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29 Bienstein v Attorney-General [2010] FCAFC 45 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; [1995] HCA 10 Breen v Williams (1996) 186 CLR 71; [1996] HCA 57 Burns v Corbett (2017) 96 NSWLR 247; [2017] NSWCA 3 Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24 Citta Hobart Pty Ltd v Cawthorn (2022) 96 ALJR 476; [2022] HCA 16 Cominos v Cominos (1972) 127 CLR 588, [1972] HCA 54 Federal Commissioner of Taxation v Munro (1926) 38 CLR 153; [1926] HCA 58 Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330; [1909] HCA 36 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24 Kaldas v Barbour (2017) 107 NSWLR 341; [2017] NSWCA 275 K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; [2009] HCA 4 KP v Narrandera Shire Council (GD) [2011] NSWADTAP 15 Luton v Lessels (2002) 210 CLR 333; [2002] HCA 13 New South Wales v Commonwealth (1915) 20 CLR 54; [1915] HCA 17 Patsalis v New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307 Precision Data Holdings Ltd v Wills (1991) 173 CLR 167; [1991] HCA 58 R v Davison (1954) 90 CLR 353, [1954] HCA 46 R v Quinn; Ex parte Consolidated Food Corporation (1977) 138 CLR 1; [1977] HCA 62 Re Colina; Ex parte Torney (1999) 200 CLR 386; [1999] HCA 57 Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140, [1987] HCA 29 Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72; [2001] HCA 49 Searle v McGregor (2022) 405 ALR 556; [2022] NSWCA 213 Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 Stack v Commissioner of Patents (1999) 161 ALR 531; [1999] FCA 148 Unions NSW v New South Wales (2023) 97 ALJR 150; [2023] HCA 4 Vice Chancellor Macquarie University v FM (No 2) (GD) [2004] NSWADTAP 37 White v Director of Military Prosecutions (2007) 231 CLR 570; [2007] HCA 29 Wojciechowska v Commissioner of Police [2022] NSWCATAD 70 Wojciechowska v Secretary, Department of Communities and Justice [2021] NSWCATAD 298 Texts Cited: James Stellios, Zines and Stellios's The High Court and the Constitution (7th edition, Federation Press, 2022) James Edelman, McGregor on Damages (21st edition, Sweet & Maxwell, 2021) Category: Principal judgment Parties: 2022/295461 Paulina Wojciechowska (Applicant) Secretary, Department of Communities and Justice (First Respondent) Civil and Administrative Tribunal (Second Respondent) 2023/53137 Paulina Wojciechowska (Plaintiff) Registrar, Civil and Administrative Tribunal (First Defendant) Commissioner of Police, NSW Police Force (Second Defendant) Secretary, Department of Communities and Justice (Third Defendant) Registrar, District Court of New South Wales (Fourth Defendant) State of New South Wales (Fifth Defendant) Representation: Advocates: P Wojciechowska (Self-represented) B Lim and H Ryan (for the first respondent in 2022/295641, and the third and fifth defendants in 2023/53137) Solicitors: Crown Solicitor's Office (Respondents and defendants) File Number(s): 2022/295461 2023/53137 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Civil Citation: EFB v Commissioner of Police [2022] NSWCATAD 99; EFB v Commissioner of Police, NSW Police Force [2022] NSWCATAD 322; Wojciechowska v Commissioner of Police [2022] NSWCATAD 70; Wojciechowska v Secretary, Department of Communities and Justice [2022] NSWCATAP 226 Date of Decision: 22 March 2022; 30 September 2022; 2 March 2022; 12 July 2022 Before: D Dinnen, Senior Member; M Griffin, Senior Member; M Riordan, Senior Member; S Westgarth, Deputy President and the Hon D A Cowdroy AO QC, Principal Member File Number(s): 2019/00382033; 2022/00194626; 2021/00333475; 2021/00322248; 2022/00123205 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] The applicant commenced various proceedings in the New South Wales Civil and Administrative Tribunal seeking a review of decisions made on behalf of: (1) the Commissioner of the NSW Police Force and the Secretary of the Department of Communities and Justice under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act); and (2) the Commissioner relating to alleged breaches of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act). Three of the Tribunal proceedings concerned applications to review decisions under s 80 of the GIPA Act involving access to information held by public sector agencies, and in two other Tribunal proceedings the applicant sought damages from the Commissioner pursuant to s 55(2)(a) of the PPIP Act. At all material times the applicant has resided interstate and her claims were against persons who were emanations of the State. It was not in dispute that her claims were of a kind potentially falling within s 75(iv) of the Constitution. The applicant argued that the Tribunal did not have jurisdiction to determine any of the proceedings in question because to do so would infringe the limitation recognised in Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15. The main issues before the Court were: (i) whether the Burns v Corbett restriction applies in relation to the exercise of non-judicial power; (ii) whether the Tribunal relevantly exercises judicial power under the GIPA Act; (iii) whether the Tribunal relevantly exercises judicial power under the PPIP Act. The Court (per Kirk JA, Mitchelmore JA and Griffiths AJA agreeing) held the restriction does not apply to non-judicial power, dismissed the challenge as regards the GIPA Act, but upheld the challenge as regards claims for damages under s 55(2)(a) of the PPIP Act: As to the nature of the restriction 1. It is not the case that Burns v Corbett prevents State tribunals from exercising any power, including power of a non-judicial kind: at [40]. The Burns v Corbett restriction involves three core issues: (1) Is the proceeding of a kind potentially falling within ss 75-76 of the Commonwealth Constitution (eg because it is between residents of different States)? (2) If so, would resolution of the claim or dispute involve exercise of the judicial power of the Commonwealth? (3) If so, is the decision-maker a court in the relevant sense? Only if the first two questions are answered "yes", and the third question is answered "no", does the Burns v Corbett restriction apply: at [42]-[43]. Here, only the second question was in issue. 2. In considering whether a power should be characterised as judicial power it is relevant to consider the nature of the power being exercised, the manner of its exercise, and the effects of its exercise: at [47]. As to the GIPA Act 3. As regards the nature of the Tribunal's decision-making functions: the functions exercised by the Tribunal with respect to the reviewable decisions at issue are aspects of governmental administration; they involve applying criteria which to a significant extent are bureaucratic or evaluative; to the extent that the criteria involve consideration of legal issues that is a common feature of administrative schemes; even then, to a large extent consideration of the legal issues is not determinative of whether or not access is granted; and the rights involved are not property rights, nor pre-existing legal rights existing independently of the statutory scheme. These features, taken together, point strongly towards characterising the decision-making functions as involving the exercise of non-judicial power: at [87]. Federal Commissioner of Taxation v Munro (1926) 38 CLR 153; [1926] HCA 58; Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140 at 148, [1987] HCA 29; Precision Data Holdings Ltd v Wills (1991) 173 CLR 167; Luton v Lessels (2002) 210 CLR 333; [2002] HCA 13; Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542; [2008] HCA 2; [1991] HCA 58; Bienstein v Attorney-General [2010] FCAFC 45; Attorney General for New South Wales v FJG [2023] NSWCA 34, considered. 4. As regards the manner of exercise of its functions, the Tribunal bears features characteristic of administrative tribunals in Australia, but also mimics features of the judicial process in some respects. The fact that the decision-makers in the Tribunal by and large need not be lawyers militates somewhat in favour of characterising the Tribunal as exercising administrative power: at [90]-[96]. 5. As regards the effect of the exercise of the powers, the Tribunal is making a decision standing in the shoes of the administrator, where the decision is treated as a decision of the administrator, and where the burden of the decision relevantly falls on the administrator. That outcome weighs significantly in favour of characterising the function as involving executive, not judicial, power: at [98]. Such powers as the Tribunal has to deal with contempt or civil penalty applications are dealt with by distinct processes which do not affect the characterisation of applications determined by the Tribunal under the GIPA Act: [102]-[103]. 6. None of the impugned functions of the Tribunal in reviewing decisions under the GIPA Act involve exercise of judicial power. They may validly be exercised by the Tribunal in proceedings which, otherwise, would fall within federal jurisdiction: at [105]. As to the PPIP Act 7. As regards the nature of the Tribunal's decision-making functions under this Act, there are many features pointing to a non-judicial characterisation of the powers: the context of the scheme is governmental administration; the criteria involved are rather evaluative and administrative in nature; enforcement of the types of norms in the PPIP Act are not characteristically or historically exercised in courts; the rights at issue are not independent, pre-existing rights, and they are given effect in the manner and to the extent set out in the statutory scheme; the Tribunal's remedies, other than the power to order compensatory "damages" in s 55(2)(a), are of a kind which can be exercised by an administrative decision-maker. However, the power granted by s 55(2)(a) is of a kind characteristically exercised by courts. It is not necessary to determine if this factor would suffice of itself to conclude that the power could not be exercised by the Tribunal in the proceedings at hand: at [134]. Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; [1995] HCA 10, considered. 8. As regards the manner of exercise of its functions, much the same points arise as with respect to the GIPA Act: at [135]. 9. As regards the effect of the exercise of the powers, the Tribunal is not merely standing in the shoes of the administrative decision-maker when exercising the powers under s 55(2). It is making orders directed to the agency, rather than in lieu of the agency's own decision: at [136]. An order for damages made pursuant to s 55(2)(a) of the PPIP Act is to be certified by a registrar under s 78(1) of the Civil and Administrative Tribunal Act 2013 (NSW) and, if then registered with a court, is enforceable as a judgment of that court. The respondents' argument that s 78(1) does not apply to s 55(2)(a) orders should not be accepted. There is no occasion to read down or sever s 78. The provision cannot be read down only in some matters and not others. And to sever it only in some matters would be to alter the operation of the legislative scheme: at [138]-[139]. 10. A decision of an administrative body is thus given the effect of a decision of a court. The Tribunal would therefore be exercising judicial power if and when an order for damages under s 55(2)(a) of the PPIP Act is sought: at [140]-[142]. Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR; [1995] HCA 10, applied. Judgment 1. MITCHELMORE JA: I agree with Kirk JA. 2. KIRK JA: In 2018 officers of the New South Wales Police Force attended a property belonging to the applicant, Ms Paulina Wojciechowska. Her dissatisfaction with the conduct of the Police, both during and after the visit to her property, has led to a large number of disputes in the New South Wales Civil and Administrative Tribunal, amongst other bodies. 3. In various of the Tribunal proceedings Ms Wojciechowska has sought review of decisions made on behalf of: 1. the Commissioner of the NSW Police Force and the Secretary of the Department of Communities and Justice under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act); and 2. the Commissioner relating to alleged breaches of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act). 1. Since November 2018 – prior to commencement of the various Tribunal proceedings – the applicant has been continuously resident in Tasmania. It is not in dispute that the relevant respondents to the Tribunal proceedings are emanations of the State of New South Wales for the purposes of s 75(iii) of the Commonwealth Constitution. The question thus arises whether or not the Tribunal has jurisdiction to determine the various issues before it in light of the principle recognised by the High Court in Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15. That question turns on whether or not determination of the issues would involve the Tribunal exercising the judicial power of the Commonwealth, which it cannot do. 2. For the reasons which follow, the Tribunal proceedings in question did not and would not involve an exercise of the judicial power of the Commonwealth with respect to the impugned functions under the GIPA Act, and there is no prohibition on the Tribunal exercising administrative power in such disputes. However, determination of an application for damages under s 55(2)(a) of the PPIP Act – as sought by the applicant in two proceedings – would involve the Tribunal exercising judicial power of the Commonwealth. The applicant is entitled to declaratory relief in that regard. 3. This judgment addresses the following issues in turn: 1. The context of these applications; 2. The Burns v Corbett restriction; 3. Does the Tribunal relevantly exercise judicial power under the GIPA Act?; 4. Does the Tribunal relevantly exercise judicial power under the PPIP Act?; 5. Orders. The context of these applications 1. The procedural pathway to this Court is complicated. There are two proceedings before the Court, both of which involve an exercise of original jurisdiction. These were usefully referred to by the respondents as the "Secretary Proceeding" (being proceeding 2022/295461) and the "State Proceeding" (being proceeding 2023/53137). The active respondents in this Court were the Secretary and the State of New South Wales (the respondents), jointly represented. The applicant represented herself. The respondents did not dispute the applicant's standing to seek the relief at issue in this Court. The Secretary Proceeding 1. The respondents in this case before this Court are the Secretary and the Tribunal. The case relates to one proceeding in the Tribunal, which was commenced on 10 May 2021 by Ms Wojciechowska (at first instance file number 2021/129993, and in the Appeal Panel number 2021/322248). Her application to the Tribunal seeks review of a decision of the Secretary. The applicant had applied to the Secretary under the GIPA Act for access to footage from CCTV security cameras, as at various identified times and dates, in rooms used by the Tribunal itself. The application was refused on the basis that no such records were located because the footage had been automatically overridden after 28 days. The application to the Tribunal was for access to the footage, on the premise that it still existed. 2. Section 80 of the GIPA Act identifies 13 classes of "reviewable decisions". This Tribunal proceeding appeared to assert that there was a reviewable decision to refuse access to information in response to an access application (s 80(d)), and perhaps a reviewable decision that government information was not held by the agency (s 80(e)). 3. In September 2021, a few months after commencing the proceeding, the applicant raised a preliminary issue challenging the Tribunal's jurisdiction to determine her application, invoking Burns v Corbett. The applicant thus challenged the jurisdiction of the Tribunal in proceedings she had herself commenced. That she did so is not as contradictory as it may sound. Part 3A of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) was enacted in response to this Court's decision in Burns v Corbett, then amended after the High Court's decision, to deal with applications or appeals in the Tribunal that would fall within federal jurisdiction and lie outside the Tribunal's authority. An applicant in such a matter may apply to the Local Court or District Court for leave to make the application or appeal to the court in question rather than in the Tribunal: s 34B(1). The relevant court may only grant leave if satisfied that, amongst other things, the application or appeal was first made to the Tribunal and that its determination would involve an exercise of federal jurisdiction: s 34B(2). Thus the applicant was required formally to make an application to the Tribunal in the usual way even if she considered that the Tribunal would be unable to deal with the matter for Burns v Corbett reasons. That being said, she was not obliged to challenge jurisdiction in the Tribunal itself; she could have made her arguments in the District Court which could then have determined whether the proceedings were in federal jurisdiction. 4. In any event, the Tribunal dismissed the applicant's jurisdictional challenge, concluding that the determination of an application for administrative review of a decision of a government agency under the GIPA Act did not constitute the exercise of judicial power. In the same decision it also dismissed her review application relating to the Secretary's decision: Wojciechowska v Secretary, Department of Communities and Justice [2021] NSWCATAD 298. 5. In November 2021 the applicant filed an appeal from that decision to the Appeal Panel of the Tribunal, again arguing that the Tribunal lacked jurisdiction. On 12 July 2022 the Appeal Panel ordered that the proceeding be stayed pending the determination of the State Proceeding, which had by then been filed in the Supreme Court. 6. The Secretary Proceeding was commenced by summons filed in this Court on 4 October 2022. By that summons the applicant seeks various relief directed to the Appeal Panel and the Tribunal. Given that the Appeal Panel was constituted in part by a former judge, the Secretary Proceeding is assigned to this Court pursuant to s 48 of the Supreme Court Act 1970 (NSW). Two grounds are raised as the basis for that relief, which in substance were as follows: 1. that the Appeal Panel and the Tribunal cannot exercise the judicial power of the Commonwealth (invoking the Burns v Corbett principle); 2. that in the past the President of the Tribunal was said not to have complied with s 52 of the CAT Act, which relates to the process for replacement of a member constituting the Tribunal who has become unavailable after consideration of a matter but before it was determined. 1. As to the latter ground, there was no evidence of the claimed past failure to comply with s 52, nor any evidence to suggest that if the issue were to arise in the future that the President would not act in accordance with the requirements of the section. The ground is without merit and the relief based on it (prayers 6 and 7) should be dismissed. 2. The substantive issue raised by this proceeding is whether the Tribunal (including the Appeal Panel) was and is precluded from dealing with the application made to it under s 100 of the GIPA Act with respect to decisions made on behalf of the Secretary under that Act, being reviewable decisions pursuant to s 80(d) and (e) of the Act. The State Proceeding 1. In the State Proceeding the applicant challenges the Tribunal's jurisdiction in four proceedings before the Tribunal, as follows (addressing them in chronological order as filed). The applicant has also made a series of other applications to the Tribunal, including ones in which she has raised a Burns v Corbett objection to the Tribunal's jurisdiction, without success. It is not necessary to list those other matters. Wojciechowska v Commissioner of Police (2019/382033) 1. In December 2019, following an unsuccessful application for internal review pursuant to s 53 of the PPIP Act, Ms Wojciechowska commenced proceedings in the Tribunal against the Commissioner seeking review of certain Police conduct pursuant to s 55 of the PPIP Act. She alleged that the Police had breached s 16 of the PPIP Act, which, put simply, requires public sector agencies that hold personal information to check the accuracy of that information prior to its use. 2. In late 2020 Ms Wojciechowska filed interlocutory applications seeking that the Tribunal decline to exercise jurisdiction in the proceedings as it involved the exercise of federal jurisdiction. In March 2021 the Tribunal dismissed the interlocutory applications, finding that in determining applications for review of conduct under s 55 of the PPIP Act it was exercising administrative, not judicial, power. 3. In March 2022 the Tribunal made certain procedural orders relating to the matter, which the applicant claims were made without jurisdiction. 4. In September 2021 Ms Wojciechowska commenced proceedings in tort against the State of NSW and the Commissioner in the District Court. In October 2021 she filed an amended statement of claim, by which she sought leave (inter alia) to make the application for review that was already the subject of the Tribunal proceeding in the District Court instead, pursuant to s 34B in Pt 3A of the CAT Act. In June 2022, at the direction of the District Court, Ms Wojciechowska filed a separate summons addressing only her application under s 34B. 5. The District Court proceeding has been listed as inactive pending the resolution of the proceedings in this Court. Similarly, in June 2022 the Tribunal vacated the final hearing of its own proceeding pending the determination of this proceeding. 6. Ms Wojciechowska's original application to the Tribunal did not identify what remedy she sought. However, in the amended statement of claim in the District Court she relevantly alleges that she "suffered loss or damage because of the conduct" of Police and claims "compensation" pursuant to s 55(2)(a) of the PPIP Act. Her proceeding in the Tribunal can be taken to involve a claim under that provision. Wojciechowska v Commissioner of Police (2021/333475) 1. In November 2021 Ms Wojciechowska commenced proceedings against the Commissioner in the Tribunal seeking review of a decision made on behalf of the Commissioner in September 2021 relating to an access application under the GIPA Act. 2. In December 2021 Ms Wojciechowska proposed that the question of whether the Tribunal's power under s 100 of the GIPA Act is administrative or judicial in nature be referred to the Supreme Court under s 54 of the CAT Act. In March 2022 the Tribunal declined to make that referral, concluding that its determination of GIPA Act applications under s 100 of the GIPA Act relevantly involves the exercise of administrative, not judicial, power: Wojciechowska v Commissioner of Police [2022] NSWCATAD 70. 3. In April 2022 the Tribunal remitted the challenged access decision to the Commissioner for reconsideration, pursuant to s 65 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act). A further decision was made on behalf of the Commissioner later that month. Ms Wojciechowska then indicated that she would not be withdrawing the Tribunal proceedings. In June 2022 the Tribunal stayed the proceeding pending the resolution of this matter. 4. The original decision on behalf of the Commissioner, made in September 2021, was that 14 of the 16 requests made had already been decided in previous applications (which had been dealt with in the Tribunal) and on that basis the decision-maker refused to deal with it pursuant to s 60(1)(b) of the GIPA Act. The decision-maker considered that the information sought in the other two requests was already available to the applicant, applying s 59(1)(d) and (e) of the GIPA Act. The decision was reviewable as being "a decision to refuse to deal with an access application" (s 80(c) of the GIPA Act) and a "decision that information applied for is already available to the applicant" (s 80(f)). 5. The decision made by the Commissioner in April 2022 on remitter was not in evidence before this Court, but given Ms Wojciechowska's dissatisfaction with that decision it may be inferred that it was to much the same effect. Wojciechowska v Secretary, Department of Communities and Justice (2022/123205) 1. In April 2022 Ms Wojciechowska commenced proceedings in the Tribunal against the Secretary seeking review of a decision made on behalf of the Secretary relating to an access application under the GIPA Act. The proceeding is ongoing, although it seems that it is on hold pending the determination of this matter. A number of determinations made on behalf of the Secretary are sought to be challenged, involving the following issues: 1. decisions that parts of the access application were invalid because of a failure to provide sufficient information, contrary to the requirements of s 41(1)(e) of the GIPA Act, where a decision that an application is not a valid access application is a reviewable decision pursuant to s 80(a); 2. decisions to refuse access to some information, being a reviewable decision pursuant to s 80(d); 3. decisions that some of the information sought was not held by the Department, being a reviewable decision pursuant to s 80(e); 4. the decision-maker also indicated that the decision may be reviewable insofar as it was a decision to provide information in a particular way, being a reviewable decision pursuant to s 80(i). Wojciechowska v Commissioner of Police (2022/194626) 1. In June 2022 Ms Wojciechowska commenced proceedings in the Tribunal seeking review of the conduct of the Police pursuant to s 55 of the PPIP Act. She alleged breach of ss 8-14 and 16-18 of the PPIP Act, and sought (only) damages under s 55(2)(a) of that Act. Her application for review in the Tribunal was made following an application for internal review made by Ms Wojciechowska to the Commissioner. The decision-maker had concluded that the application for internal review was not duly made as it was insufficiently particularised, but invited Ms Wojciechowska to provide further information. That invitation was not taken up. 2. In September 2022 the Tribunal determined that it would take no action in the matter, for reasons which included that the application for internal review was not sufficiently particularised. The applicant did raise an argument that the Tribunal did not have jurisdiction but the Tribunal did not seek to resolve the point. The State Proceeding in this Court 1. The State Proceeding was commenced in the Equity Division of the Supreme Court in July 2022. It was transferred to the Common Law Division. Following an application to this Court, Mitchelmore JA made orders on 14 February 2023 removing the Proceeding to this Court, then remitting the proceeding other than prayer 1 of the amended summons to the Common Law Division. Prayer 1 of the amended summons seeks a declaration that the Tribunal "has no jurisdiction to hear and validly determine" the four proceedings commenced by Ms Wojciechowska, identified above, on the basis that the proceedings involved an exercise of federal judicial power contrary to the Burns v Corbett principle. 2. The applicant sought leave during the hearing in this Court to add to prayer 1 so as to include, as a further basis for the declaration, that "the conferral of administrative power in respect of the matter listed in s 75(iv) of the [Constitution] is invalid". This addition was linked to an argument by the applicant that Burns v Corbett prevents the Tribunal even exercising administrative power when the proceedings involve a dispute between a State and a resident of another State. She also sought to add relief in the nature of prohibition, and to correct any errors in the names of respondents or defendants. She also seeks leave to dispense with what she describes as an "irregularity" arising from having commenced the original proceedings in the wrong form, and seeks an extension of time for filing her submissions and affidavits, in circumstances where she was a little late in complying with the ordered timetable. The respondents did not object to these amendments and procedural orders. 3. The applicant should be given leave to amend prayer 1 to refer to the administrative power point and to seek relief in the nature of prohibition. In circumstances where the respondents have taken no objection to the form in which the proceedings were commenced, or to the minor non-compliance with the timetable, no orders need be made in relation to those matters. What is in dispute in this Court 1. The Tribunal proceedings in question involve applications to review the following types of reviewable decisions under the GIPA Act: that an application is not a valid access application (s 80(a) of the GIPA Act); refusing to deal with an application (s 80(c)); refusing access to information (s 80(d)); that some of the information sought was not held by the agency (s 80(e)); that information was already available to the applicant (s 80(f)); and to provide information in a particular way (s 80(i)). The Tribunal proceedings also involve applications alleging contravention of ss 8-14 and 16-18 of the PPIP Act, seeking the remedy of damages pursuant to s 55(2)(a) of that Act. The question for this Court is whether determination of these issues lies beyond the jurisdiction of the Tribunal in light of the principle in Burns v Corbett. The Burns v Corbett restriction 1. Since soon after Federation it has been established that the federal Parliament "has no power to entrust the exercise of judicial power to any other hands" than the courts identified in s 71 of the Constitution: Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 355 per Griffith CJ; [1909] HCA 36. Thus it has long been recognised that federal administrative tribunals are not capable of exercising the judicial power of the Commonwealth: see eg New South Wales v Commonwealth (1915) 20 CLR 54; [1915] HCA 17. This principle was not generally understood to restrict State Parliaments from authorising State tribunals to exercise judicial power. 2. That understanding proved partially incorrect in light of the High Court's decision in Burns v Corbett in 2018. That decision established that "a State Parliament lacks legislative capacity to confer on a State tribunal that is not a court of the State within the meaning of s 77(ii) and s 77(iii) of the Constitution judicial power with respect to any matter of a description in s 75 or s 76 of the Constitution" (to quote the summary of the principle in Citta Hobart Pty Ltd v Cawthorn (2022) 96 ALJR 476; [2022] HCA 16 at [1]). 3. Most disputes that come before State administrative tribunals will not involve a matter potentially falling within ss 75 and 76 of the Constitution, that is to say, potentially falling within federal jurisdiction. Some will, however, most notably because some emanation of the Commonwealth is a party (s 75(iii)) or because the dispute is between residents of different States or between a State and a resident of another State (s 75(iv)). 4. In the five years since Burns v Corbett was determined, tribunals and courts have been working out the effects of that decision with respect to the issues that are capable of being determined by State tribunals. Parliaments have also responded, passing laws which facilitate courts determining issues that would ordinarily fall within the jurisdiction of an administrative tribunal but which are excluded as a consequence of that decision. This Court's decision in Searle v McGregor (2022) 405 ALR 556; [2022] NSWCA 213 concerned the operation of such a provision relating to proceedings in the Personal Injury Commission. As noted, there are similar provisions for proceedings in the Tribunal in Pt 3A of the CAT Act. The provisions in Pt 3A themselves require a determination of whether the application or appeal in question "would involve an exercise of federal jurisdiction": s 34B(2)(b). 5. Although the context is new the issue is of a longstanding kind. In the federal sphere it has long been necessary to consider whether any power granted to a federal administrative tribunal, or other non-judicial body, involves the exercise of the judicial power of the Commonwealth. The principles developed in that context now fall to be applied in considering whether the exercise of particular powers by a State tribunal would involve the exercise of judicial power in a proceeding which would fall within the scope of federal jurisdiction. 6. That understanding throws some light on why one of the arguments made by the applicant is misconceived, namely, the claim that Burns v Corbett prevents State tribunals from exercising any power, including power of a non-judicial kind, in a dispute that appears to fall within the list of matters in ss 75 and 76 of the Constitution. That suggestion has previously been rejected by this Court: Searle v McGregor at [10]-[20]. In Burns v Corbett the arguments were addressed in significant part by reference to the notion of what "matters" are. But the notions of "matter", federal jurisdiction and the judicial power of the Commonwealth are interlinked. So much is evident in the summary in Citta of what Burns v Corbett established, quoted above at [36], which explains that State Parliaments lack capacity to confer on non-courts "judicial power with respect to any matter of a description in s 75 or s 76 of the Constitution". Federal jurisdiction "is the authority to adjudicate – the authority to exercise the judicial power of the Commonwealth – derived from the Constitution and laws passed by the Commonwealth Parliament under the Constitution": Unions NSW v New South Wales (2023) 97 ALJR 150; [2023] HCA 4 at [13] (citation omitted). Leaving aside the High Court, matters within federal jurisdiction cannot be resolved other than by a court exercising judicial power granted jurisdiction by federal legislation (as to which, see in particular s 39(2) of the Judiciary Act 1903 (Cth)). 7. Inherent in the notion of "matter" is that there is a justiciable controversy, that is to say, some issue capable of resolution by an exercise of judicial power; "[w]ithout the right to bring a curial proceeding, there can be no 'matter'": Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 at [31]; see also Unions NSW at [15]. If determining some claim or dispute would not involve an exercise of judicial power then there is no matter in the relevant sense. 8. The Burns v Corbett restriction is thus to this effect: if resolution of the issue in question would involve exercise of the judicial power of the Commonwealth in a matter falling within ss 75 or 76 of the Constitution then it can only be resolved in a court authorised by federal legislation to exercise that power. There are three core issues involved: 1. Is the proceeding of a kind potentially falling within ss 75-76 (eg because it is between residents of different States)? 2. If so, would resolution of the claim or dispute involve exercise of the judicial power of the Commonwealth? 3. If so, is the decision-maker a court in the relevant sense? 1. Only if the first two questions are answered "yes", and the third question is answered "no", does the Burns v Corbett restriction apply. 2. If the applicant's argument to the contrary was correct then federal administrative tribunals could not exist, for all disputes determined by such bodies arise under laws made by the Commonwealth and thus potentially fall within federal jurisdiction (see s 76(ii) of the Constitution). Yet such bodies validly determine claims and disputes insofar as doing so does not involve exercising the judicial power of the Commonwealth: see eg Attorney-General (Cth) v Breckler (1999) 197 CLR 83; [1999] HCA 28 relating to the Superannuation Complaints Tribunal; Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board (2007) 231 CLR 350; [2007] HCA 23 as regards decisions of the identified board; Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542; [2008] HCA 2 with respect to the Takeovers Panel. 3. The respondents accept that the proceedings are of a kind potentially falling with ss 75-76 of the Constitution, because the dispute is between a State and a resident of another State (s 75(iv)). They also accept that the Tribunal is not a court in the relevant sense: note Attorney General for New South Wales v Gatsby (2018) 99 NSWLR 1; [2018] NSWCA 254. The dispute is as to whether the Tribunal's functions at issue here – being the functions involved in resolving the issues identified at [34] above – would involve an exercise of judicial power. 4. The relevant notion is the "judicial power of the Commonwealth", as that term is employed in s 71 of the Constitution: note White v Director of Military Prosecutions (2007) 231 CLR 570; [2007] HCA 29 at [50]-[51]. In what follows I will simply refer to judicial power. As has been said many times, no exhaustive definition can be given of judicial power as that notion is employed in the Constitution. As Hayne J put it in Alinta at [93], "no single combination of necessary or sufficient factors identifies what is judicial power". The subtleties of the concept of characterising a power as judicial or not have been discussed in numerous cases, and is the subject of careful analysis in, for example, Ch 10 of Zines and Stellios's The High Court and the Constitution (James Stellios, Federation Press, 7th edn, 2022). Various relevant factors and considerations have been identified. The applicant's submissions focused on a list of such factors enumerated by Callinan J in Luton v Lessels (2002) 210 CLR 333; [2002] HCA 13 at [189]. I will focus on the salient features relevant to considering whether exercise of adjudicative power with respect to the two statutory regimes at issue would involve an exercise of judicial power. 5. The nature of the power being exercised is important. In some cases the manner of exercise of the power may be determinative; in others the effects of the exercise of the power will be decisive. As to the nature of the power, there are some functions which have been characterised as necessarily and exclusively judicial, such as the determination of criminal guilt or of claims in contract or tort: see, respectively, R v Quinn; Ex parte Consolidated Food Corporation (1977) 138 CLR 1 at 11; [1977] HCA 62; Breckler at [40]. At the other end of the spectrum there are functions which are necessarily non-judicial, such as those which involve determinations based on broad policy considerations of a non-legal kind: Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 189; [1991] HCA 58; Alinta at [4]-[5]. Between these poles are numerous functions which are neither inherently judicial or non-judicial, and which can potentially be allocated either to courts or to administrative decision-makers. These issues are considered further below. 6. The possibility that certain exercises of power by the Tribunal lie beyond its jurisdiction because of the Burns v Corbett limitation is capable of creating significant inconvenience, as this case illustrates. It increases the complexity and cost of proceedings. It may mean that the parties are required to pursue the proceedings in the District Court rather than in a tribunal whose ordinary business is to interpret and administer these intricate legislative regimes. Because the Burns v Corbett limitation has only recently come to be recognised, and because until then it was widely understood that the State Parliament could authorise the Tribunal to exercise judicial power in all proceedings, State legislation such as the PPIP Act has not been drafted so as to seek to avoid the powers granted being characterised as judicial. As experience at the federal level illustrates, it is often the case that that characterisation can be avoided by careful legislative drafting. Does the Tribunal relevantly exercise judicial power under the GIPA Act? 1. The salient characterisation issues here can be addressed by considering the nature of the decision-making functions involved, the nature of the decision-maker, and the effects and enforceability of the decisions. Before addressing those topics it is necessary to sketch out the legislative framework. The parties referred to the current versions of the legislation. I will do the same. The legislative framework The GIPA Act in outline 1. The object of the GIPA Act is set out in s 3, and includes "giving members of the public an enforceable right to access government information", where access is to be restricted "only when there is an overriding public interest against disclosure". The term "government information" is defined as "information contained in a record held by an agency" (s 4(1)); "record" is defined in broad terms (see Sch 4 cl 10). Reflecting the fact that the Act is only addressing government information, the term "agency" is defined to mean a public service agency, a Minister or a staffer thereof, a public or local authority, a public office, a court, and certain persons or entities designated as agencies by regulations: s 4(1). 2. Part 2 Div 1 of the Act sets out various ways in which government information may be made available. The relevant pathway here is by way of an "access application", which is defined in s 4(1) as "an application for access to government information under Part 4 that is a valid application under that Part". Section 41, within Pt 4, provides that an application is not a valid access application unless certain formal requirements are met, including that "it must be accompanied by a fee of $30". That fee can be reduced or waived by the agency: ss 51A and 127. 3. Section 9(1) provides: A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information. 1. The agency dealing with the application must make an initial decision as to its validity: s 51. The agency may be required to consult with third parties about providing access to the information sought if the information is of a particular kind and the third party may reasonably be expected to have concerns about its disclosure: s 54. Unless extended, an agency must decide an access application and notify the applicant of the decision within 20 working days of the receipt of the application: s 57. 2. Section 58 outlines the range of decisions which an agency may make: to provide access to the information; to decide that the agency does not hold the information; to decide that the information is already available to the applicant (see further s 59); to refuse to provide access because there is an overriding public interest against disclosure; to refuse to deal with the application on one of the grounds in s 60 (eg because the agency has previously decided an application by the applicant for the information concerned); or to refuse to confirm or deny that the information is held by the agency because there is an overriding public interest against doing so. Any such decision is reviewable in the manner explained below. 3. The question of whether there is an overriding public interest against disclosure turns on ss 12-15 and Sch 1 of the Act. Section 14(1) provides that it "is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1". That schedule sets out various categories of information, including information identified as "Cabinet information", "Executive Council information" and information covered by legal professional privilege. 4. Beyond the categories where there is a conclusive presumption, s 12 provides that there is a general public interest in favour of the disclosure of government information, and s 13 provides that there is an overriding public interest against disclosure "for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure". Leaving aside the Sch 1 categories, the only considerations that may be taken into account as public interest considerations against disclosure are those listed in the table in s 14. That table sets out seven types of consideration, the first six of which identify various types of reasonably expected effects militating against disclosure; the seventh relates to claims for exemption by other Australian governments. 5. Most of the first six categories in the table in s 14 involve a degree of contestable evaluation, such as: "prejudice relations with, or the obtaining of confidential information from, another government"; "endanger, or prejudice any system or procedure for protecting, the life, health or safety of any person"; and "damage, or prejudice the ability of the Government or an agency to manage, the economy". However, other listed effects involve consideration of legal issues, such as: "found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence", and "reveal false or unsubstantiated allegations about a person that are defamatory". 6. In making the requisite assessment of whether there is an overriding public interest against disclosure the agency may (if relevant) consider factors personal to the applicant in question, whether for or against disclosure, including as to the applicant's identity, relationships and motives for making the application: s 55. Administrative review and the ADR Act 1. The ADR Act creates two rights of review – internal review and Tribunal review – for a species of decision labelled an "administratively reviewable decision". That notion is spelt out in ss 7-9. Such a decision is one which is a decision of an "administrator" over which the Tribunal has been given "administrative review jurisdiction" by some enabling legislation, where the administrator is the person or body that made, or is taken to have made, the decision. 2. The relevant enabling legislation here is the GIPA Act, s 100 of which provides that a person aggrieved by a "reviewable decision" of an agency may apply to the Tribunal for administrative review under the ADR Act. As noted above, s 80 specifies what the "reviewable decisions" are for the purposes of that part of the Act. Both sections are found within Pt 5 of the GIPA Act, which is headed "Review of decisions". 3. Chapter 3 of the ADR Act is headed "Process for administrative reviews under this Act". Part 2 Div 2 in that chapter imposes a duty to give reasons on request in relation to an administratively reviewable decision. Part 2 Div 3 establishes a right to seek internal review of such decisions by another decision-maker within the agency. However, that division does not apply in relation to decisions under the GIPA Act (pursuant to s 102 of that Act) because Pt 5 Div 2 of the GIPA Act set outs its own provision for internal review of a reviewable decision. A decision on internal review under the GIPA Act is a new decision, as if the original decision had not been made: s 84(1). A person aggrieved by such a decision can seek a further review by the Information Commissioner under Pt 5 Div 3 of the GIPA Act, although the Commissioner relevantly has a power to make recommendations and cannot make a substitute decision. 4. If the person is still aggrieved by a reviewable decision they may then apply to the Tribunal for administrative review (they can do so whether or not they have sought review by the Information Commissioner). The nature of such reviews is addressed by Pt 3 of Ch 3 of the ADR Act, which is headed "Role of the Tribunal". The Tribunal is to determine the "correct and preferable decision" based on the material before it, including any relevant factual material and any applicable law: ADR Act, s 63(1). In doing so it may exercise all of the functions conferred or imposed by any relevant legislation on the administrator who made the decision under review: ibid, s 63(2). The Tribunal's powers are more limited in respect of decisions about Cabinet and Executive Council information, insofar as the question for determination is not what the correct and preferable decision was, but rather whether there were reasonable grounds for the agency's claim: GIPA Act, s 106(1). 5. In determining the application for administrative review under the ADR Act, the Tribunal may decide to affirm, vary or set aside the decision under review: ADR Act, s 63(3). In so doing it must give effect to any relevant government policy (as defined) in force at the time the decision under review was made, except to the extent that the policy is contrary to law or produces an unjust decision in the circumstances of the case: s 64. At any stage of the proceedings the Tribunal may remit the decision to the administrator who made it for reconsideration, although the applicant may proceed with the Tribunal proceeding if dissatisfied with the reconsidered decision: s 65. 6. If the Tribunal decides to set aside the decision, it may either make a decision in substitution or remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal: s 63(3). If the Tribunal's decision is to vary or make a substitute decision then the Tribunal's decision is taken to be the decision of the administrator and, unless otherwise ordered by the Tribunal, with effect on and from the date of the administrator's actual decision: s 66. 7. The Tribunal may also refer to the Information Commissioner any matter which is indicative of a systemic issue in relation to the determination of access application by a particular agency or agencies generally (GIPA Act, s 111), or report instances of failures to exercise good faith by agency officers to the Minister with responsibility for the agency or the Information Commissioner (s 112). The process employed in the Tribunal 1. Pursuant to s 13 of the CAT Act, the Tribunal is constituted of: the President, who must be a Supreme Court judge; Deputy Presidents, who each must be a lawyer or current or former judge; and Principal, Senior and General Members, who may be Australian lawyers but need not be if they have other qualifying characteristics. There is no requirement that the person constituting the Tribunal in determining a review of a GIPA Act access application be a lawyer. 2. The procedure of the Tribunal is outlined in the CAT Act. Except in the circumstances described in s 38(3), the Tribunal is not bound by the rules of evidence and may inquire into and inform itself in such manner as it thinks fit, subject to the rules of natural justice: s 38(2). It is required to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms: s 38(4). The Tribunal may only award costs if satisfied there are special circumstances warranting it: s 60. 3. Applications for review of administratively reviewable decisions, including those under the GIPA Act, are allocated to the Administrative and Equal Opportunity Division of the Tribunal: CAT Act, ss 16-17 and Sch 3 cl 3(1)(a). In proceedings in that Division a party is entitled to be legally represented without the leave of the Tribunal: Sch 3 cl 9(1). Appeals and judicial review 1. An appeal with respect to the determination of a reviewable GIPA Act decision may be made to the Appeal Panel of the Tribunal as of right on any question of law, or with the leave of the Panel on any other grounds: CAT Act, ss 32 and 80-81. The Appeal Panel is to be constituted by one member who is an Australian lawyer or two or more members at least one of whom must be an Australian lawyer: CAT Act, s 27(1)(a). There is no requirement that all members of the Panel be lawyers. 2. A party to such an appeal may then "appeal" to the Supreme Court, with the Court's leave, "on a question of law … against any decision made by the Tribunal": CAT Act, s 83(1). As has been said of a similar Victorian provision, "the Supreme Court is asked to exercise original, not appellate, jurisdiction and to do so in proceedings which are in the nature of judicial review": Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72; [2001] HCA 49 at [15]. Decisions of the Tribunal or the Appeal Panel are also subject to judicial review pursuant to the general law and s 69 of the Supreme Court Act. The nature of the decision-making functions exercised by the Tribunal 1. As summarised above at [34], the types of reviewable decisions at issue here are whether an access application is valid (s 80(a) of the GIPA Act); refusals to deal with an application (s 80(c)); refusals of access to information (s 80(d)); conclusions as to whether information sought was held by the agency (s 80(e)); conclusions as to whether information was already available to the applicant (s 80(f)); and decisions about the means by which access to information was to be provided (s 80(i)). 2. All of these are decisions about whether or not to allow access to information held by agencies or persons operating as part of the State. The GIPA Act involves the State regulating its own record-keeping. It is an aspect of governmental administration. It is not part of some broader regulatory scheme extending to the regulation of access to information held by non-governmental entities or persons. Subject to any overriding legal restriction, the holder of any information can decide whether to make it available to others, whether specifically to individuals who request access, or simply by publishing it to the world at large, for example by uploading it to the internet. The GIPA Act, in combination with the ADR Act and the CAT Act, establishes a formal and sophisticated regime for management of that task as regards information held by relevant governmental entities. 3. That regime is administered in the first instance by agency officers. The next stage of decision-making, internal review, is again undertaken by agency officers. Those officers apply the same criteria that are applied in turn by the Tribunal. The Tribunal undertakes merits review of the operative decision, its role being to determine the correct and preferable decision on the material before it. If the Tribunal was characterised as exercising judicial power when doing so then there would be a real prospect that the agency officers, too, would be doing so. That would be a counter-intuitive conclusion. 4. Practical issues of whether an application provides "such information as is reasonably necessary to enable the government information applied for to be identified" such that the application is valid (quoting s 41(1)(e)), whether or not information is in fact held by an agency, whether information was already available to the applicant, or the manner in which the information should be provided, are bureaucratic in nature. They are well removed from the central notion of judicial power, that is, the authoritative and binding determination of rights in a controversy between parties: Huddart, Parker & Co Pty Ltd at 357. 5. As regards the criteria that are applied in relation to obtaining access – and addressing first the categories set out in Sch 1 where there is a conclusive presumption that disclosure is contrary to the public interest – a number of these involve substantially factual assessments of whether or not information bears the relevant character. For example, whether or not a document contains "Cabinet information" (Sch 1 cl 2) or "Executive council information" (cl 2) will involve consideration of the contents of the document, perhaps along with consideration of the circumstances in which and the purposes for which it came into existence. Other categories will involve direct consideration of legal criteria, such as whether disclosure of particular information is prohibited by various identified laws (cl 1), would involve a contempt of court (cl 4), or would be contrary to legal professional privilege or other such privileges (cll 5 and 5A). 6. As regards the non-conclusive categories addressed in the table in s 14, as noted above at [57], most of the categories involve a degree of contestable evaluation. For instance, whether or not release of information would "damage, or prejudice the ability of the Government or an agency to manage, the economy" is something more suited to determination by government decision-makers, or a tribunal standing in their shoes, than by courts. That said, some of the categories in the table will involve direct consideration of legal criteria, such as whether or not the information is subject to a duty of confidence. 7. Even so, all of these criteria in Sch 1 and the table in s 14 involve assessment of the character of information. That character may be informed by legal criteria established by laws outside the GIPA Act regime, including laws which may attribute particular rights or duties to information or documents. But considering whether or not information or documents are imbued with such a character is not inherently judicial. Administrative schemes commonly involve decision-makers determining facts and considering and applying statutory criteria: Federal Commissioner of Taxation v Munro (1926) 38 CLR 153 at 176-179; [1926] HCA 58; Luton at [66]; Alinta at [161]. Creating such schemes and criteria is one of the main means by which the Parliament directs and controls the executive. Administering them may involve assessment of legal rights and duties. As the High Court said in Precision Data (at 189, citation omitted): although the finding of facts and the making of value judgments, even the formation of an opinion as to the legal rights and obligations of parties, are common ingredients in the exercise of judicial power, they may also be elements in the exercise of administrative and legislative power. 1. Even the determination "whether a person has engaged in conduct that constitutes a criminal offence as a step in the decision to take disciplinary or other action" is not necessarily judicial: Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; [2015] HCA 7 at [33]. Thus, insofar as the legislative scheme involves consideration of legal rights and duties, that does not require that the scheme be characterised as involving the exercise of judicial power. 2. Moreover, as regards the categories of information identified in the table in s 14, even insofar as they involve assessment of legal issues, that assessment is not conclusive of the issue as to whether access should be granted. For example, item 1(g) in the table is that disclosure could reasonably be expected to "found an action against an agency for breach of confidence…". Even if that is found to be so, on application of legal principles, disclosure is still required unless the agency officer or Tribunal considers that the "general public interest in favour of the disclosure of government information", along with any other public interest considerations in favour of disclosure, is outweighed by the public interest in not disclosing for the relevant reason identified in the table. Thus any conclusions reached as to legal rights and duties are but a step in the decision-making path. 3. In any decision the Tribunal makes it is also bound to give effect to any relevant government policy to the extent required by s 64 of the ADR Act. That factor militates against the decisions being characterised as involving judicial power: eg Precision Data at 191. So, too, does the fact that the Tribunal is authorised to refer any matter to the Information Commissioner that it "considers is indicative of a systemic issue in relation to the determination of access applications by a particular agency or by agencies generally" (GIPA Act, s 111), or to bring to the attention of the relevant Minister or the Information Commissioner a conclusion that an officer of an agency has failed to exercise in good faith a function under the Act (s 112). These powers indicate that the Tribunal has a role in ensuring good administration. 4. The applicant made the point that when the predecessor of the GIPA Act was initially enacted the equivalent review right was vested in the District Court rather than in a tribunal: Freedom of Information Act 1989 (NSW), s 53. At most that illustrates that it is possible that such rights fall in that part of the spectrum that they could be conferred either on courts or tribunals. But even that does not necessarily follow, as, subject to the Kable principle about maintaining the institutional integrity of courts, there is no constitutional requirement that State courts only exercise judicial power: note Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 118-119; [1996] HCA 24; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; [2009] HCA 4 at [153]. 5. The applicant placed much emphasis on the fact that s 9 of the GIPA Act gives a person who makes an access application "a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information". Claims for enforcement of pre-existing, distinct legal rights generally invoke the exercise of judicial power: Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140 at 148, [1987] HCA 29. 6. The applicant went so far as to characterise the right identified in s 9 as a property right, said to have been purchased by payment of the $30 application fee prescribed by s 41(1)(c) of the GIPA Act. In oral argument this was suggested to be a property right in documents sought. The GIPA Act is directed to information contained in records rather than to documents per se. There is no suggestion that if the application is upheld the applicant obtains ownership of, or a right to remove, particular items of paper, computer storage devices, or other property. Rather, a successful application entails being given access to the information. The access is to be provided by way of a reasonable opportunity to inspect the record containing the information, providing a copy of the record, otherwise providing access such that the information can be read or viewed or listened to, or by providing a written transcript: GIPA Act, s 72. Other applicants may equally gain such access. There "can be no proprietorship in information as information, because once imparted by one person to another, it belongs equally to them both": Breen v Williams (1996) 186 CLR 71 at 90; [1996] HCA 57 (citation omitted); see also at 80-81 and 129. Such rights as exist are not property rights. 7. As for the argument about the "legally enforceable right", that term is not defined. Importantly, s 9 refers to a right "to be provided with access to the information in accordance with Part 4", which Part deals with access applications and the determination thereof by agencies. The review of Pt 4 determinations is addressed in Pt 5 of the GIPA Act, together with the ADR Act and CAT Act. The "legally enforceable right" refers to the claim for access being enforceable by those processes carefully set out in the statutory scheme: note analogously Bienstein v Attorney-General [2010] FCAFC 45 at [5]-[6]. There are relevantly no independent legal rights existing outside of the statutory scheme: cf Citta at [31]; Attorney General for New South Wales v FJG [2023] NSWCA 34 at [93]. This is not an instance where the Tribunal is enforcing pre-existing, distinct legal rights. 8. It can be relevant whether such issues were historically or characteristically determined by courts: R v Davison (1954) 90 CLR 353 at 370, [1954] HCA 46; Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 258 and 267; [1995] HCA 10. Giving effect to statutory freedom of information access regimes is not something traditionally undertaken by courts. 9. It can also be relevant to consider the effects of the type of decision in question. What is at issue here is access to information held by State agencies which an applicant would otherwise, in general, have no right to obtain. The applicant argued that rights granted under the GIPA Act are important. The force of that point is reflected in s 3 of the Act, referring to seeking "to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective". Even so, the effects of particular decisions on individuals is likely to be limited, and not of such significance as to suggest such issues can only be determined by courts. The scheme does not, for example, involve fundamental values such as liberty of the person: cf Alexander v Minister for Home Affairs (2022) 96 ALJR 560; [2022] HCA 19 at [73]. 10. In sum, as regards the nature of the Tribunal's decision-making functions: the functions exercised by the Tribunal with respect to the reviewable decisions at issue are aspects of governmental administration; they involve applying criteria which to a significant extent are bureaucratic or evaluative; to the extent that the criteria involve consideration of legal issues that is a common feature of administrative schemes; even then, to a large extent consideration of the legal issues is not determinative of whether or not access is granted; and the rights involved are not property rights, nor pre-existing legal rights existing independently of the statutory scheme. These features, taken together, point strongly towards characterising the decision-making functions as involving the exercise of non-judicial power. 11. Justice Kiefel said of the role played by the federal Administrative Appeals Tribunal in another context that it, "in essence, is an instrument of government administration": Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 at [140]. The same is true of the role that the State Tribunal plays in undertaking merits review role of the impugned types of decision under the GIPA Act. The nature and process of the decision-maker 1. In considering whether a function granted to an administrative decision-maker is judicial power, one of the relevant considerations militating against it being so characterised is the very fact that the function has been given to a non-judicial body, at least if it is to be exercised in a manner not involving judicial process. That is so because "some functions may, chameleon like, take their colour from their legislative surroundings or their recipient": R v Quinn at 18. Thus "functions may be classified as either judicial or administrative according to the way in which they are to be exercised": Precision Data at 189. This factor is significant but not definitive. Were it otherwise, then there would be no restriction on the powers that could be granted to non-judicial decision-makers, which is not the law of Australia. In any event, this factor is just as applicable to consideration of whether State tribunals would impermissibly be exercising the judicial power of the Commonwealth as it would be in considering the issue as regards federal administrative decision-makers: see similarly Attorney-General for State of South Australia v Raschke (2019) 133 SASR 215; [2019] SASCFC 83 at [71]-[73]. 2. The Tribunal bears features which have become common to, and characteristic of, administrative tribunals in Australia since the introduction of the Administrative Appeals Tribunal Act 1975 (Cth). At first instance the Tribunal need not be constituted by lawyers, and on appeal the Appeal Panel is required to have one lawyer but not all members need be lawyers (see above at [66] and [69]). It relevantly is not bound by the rules of evidence, and it may inquire into and inform itself in such manner as it thinks fit (see above at [67]), which features "can be an indicator of an administrative rather than a judicial body, but it is not determinative": K-Generation at [82]. 3. The Tribunal is required to act with as little formality as the circumstances of the case permit, and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (above at [67]). These features, too, militate in favour of characterising the exercise of power as more administrative than judicial in nature. 4. As for the powers of the Tribunal to punish contempt, it is convenient to address those below. 5. The applicant argues that there are features of the Tribunal's process which "mimic the processes of a court", noting that it involves: the filing and service of documents; evidence; oral and written submissions; the possibility of issuing subpoena-like summons (CAT Act, s 48); legal representation is of right; costs can be awarded, albeit only in special circumstances; and there is a court-like appeal structure. She also points to the fact that Tribunal and Appeal Panel decisions, unsurprisingly, tend to be treated as guiding precedents in subsequent Tribunal determinations. 6. The applicant is right to suggest that such features overlap with the judicial process. The process has no doubt been adopted because they reflect an established, fair way of managing disputes. The Tribunal is required to act in such a way for "the purpose of carrying out executive functions in a just way": see Munro at 176. Imitation does relatively little to suggest that the process must be characterised as judicial. In the oft-cited judgment of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21, expounding the inability of courts to undertake merits review, his Honour said that the "absence of adequate machinery, such as an Administrative Appeals Tribunal, to review the merits of administrative acts and decisions may be lamented in the jurisdictions where the legislature has failed to provide it" (at 37). The Constitution should not be understood to discourage Parliaments from adopting aspects of judicial process in administrative tribunals lest the exercise of power in that way be characterised as impermissibly judicial. That being said, the matters identified by the applicant which are consistent with judicial process do weigh against the other process factors militating in favour of an administrative characterisation. 7. In relation to costs, although commonly associated with courts, they have a statutory foundation: Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29 at [33], [59], [81]-[82]. They may have "traditionally been regarded as forming a part of the exercise of judicial power": Cominos v Cominos (1972) 127 CLR 588 at 599, [1972] HCA 54. But that does not mean they are exclusive to it, and they may take their colour from their context: ibid at 591, 606, 609; Stack v Commissioner of Patents (1999) 161 ALR 531; [1999] FCA 148 at [32]-[33]. Thus, here, they can be regarded as administrative in character. One complication is that an order for costs can be registered in a court under s 78 of the CAT Act, then enforced as a judgment of that court. That provision is discussed further below with respect to the PPIP Act. In relation to the GIPA Act, that provision only has significance as regards costs, which is an ancillary order, only made after determination of what is actually sought under the GIPA Act (as is implicit in the factors identified in s 60(3) in relation to what may constitute special circumstances warranting an order for costs). The tail would be wagging the dog were a possible issue about enforcement of a subsequent, ancillary costs order to determine the characterisation of claims made under the GIPA Act. 8. Taking all these factors together, what is most pertinent is that the decision-makers in the Tribunal by and large need not be lawyers. Although far from determinative, that militates in favour of characterising the Tribunal as undertaking an administrative process, exercising administrative power. The outcome of the decision and the effect of Tribunal orders 1. The Tribunal may exercise all of the functions of the administrator who made the decision under review: ADR Act, s 63(1). The ways in which an access application may be decided were explained above at [53]. The possible outcomes of determining an access application under s 58 of the GIPA Act do not impose obligations on the applicant; any obligations imposed are on the agency, and do not involve payment of money (thus s 78 of the CAT Act, which is discussed further below with respect to the PPIP Act, is not relevant here). There may be disputes about processing fees and deposits, which can be reviewed in the Tribunal: GIPA Act, ss 64-71 and 80(j)-(l). No such issues are raised in this case. In any event, such fees only arise insofar as an applicant makes and persists with an access application. 2. Under s 63(3) of the ADR Act the Tribunal may affirm an administratively reviewable decision, vary it, set it aside and make a substitute decision, or set it aside and remit it for reconsideration by the administrator. If the Tribunal varies or substitutes a decision then the decision of the Tribunal "is taken … to be the decision of the administrator" and to have had effect as such on and from the date of the administrator's actual decision (unless the Tribunal otherwise orders): ADR Act, s 66(2). Thus – reflecting the merits review nature of the process – the Tribunal is making a decision standing in the shoes of the administrator, where the decision is treated as a decision of the administrator, and where the burden of the decision relevantly falls on the administrator. That outcome weighs significantly in favour of characterising the function as involving executive, not judicial, power. 3. The applicant submitted that the Tribunal has the "ability to injunct a person under the GIPA Act", referring to s 110. That provision authorises the Tribunal to order that a person is not permitted to make an access application without first obtaining the approval of the Tribunal if that person (by themselves or in concert with others) has made at least three access applications in the previous two years "that lack merit", as defined. That power simply enables the Tribunal to restrict future invocation of the statutory rights under the Act. The legislation could have done that in a more direct way. That it interposes some evaluative process does not render the power judicial. 4. Issues of compliance and enforcement of orders are dealt with under the CAT Act. Contravention of a designated order of the Tribunal is an offence (s 72(1)-(2)) but it appears that the kind of orders at issue here are not designated. Contravention of any other order of the Tribunal without reasonable excuse is also prohibited and is punishable by way of a civil penalty: s 72(3). To the extent that that applies to orders which are the outcome of a review of an access application it would be likely to apply to administrative officers rather than the applicant. In any case, seeking a civil penalty would involve a separate process in the Tribunal which may only be commenced by the Minister or by someone with the Minister's written consent: ss 75 and 77. 5. Contempt of the Tribunal is addressed in s 73 of the CAT Act. Under subsection (1), if it appears or is alleged that a person is guilty of contempt of the Tribunal committed in the face or in the hearing of the Tribunal, the Tribunal has the same powers of the District Court in relation to a contempt of that court: s 73(1). Under subsection (2), a person will be guilty of contempt of the Tribunal if, without reasonable excuse, they do or omit to do anything that, if the Tribunal were a court of law having power to commit for contempt, would amount to contempt of that court. Where it appears or is alleged that a person is guilty of contempt of the Tribunal of any kind, the Tribunal may refer the matter to the Supreme Court for determination: s 73(5). The Supreme Court may then dispose of any such matter referred to it in the manner it considers appropriate. 6. The power to punish for contempt is undoubtedly an attribute of judicial power: see eg Re Colina; Ex parte Torney (1999) 200 CLR 386; [1999] HCA 57 at [112]. Although the Tribunal may refer contempt issues to the Supreme Court, it has powers to deal with some contempt issues itself. However, the availability of these powers is not of great significance here. As a note underneath s 73(1) of the CAT Act records, s 27(1)(b) of that Act provides that "in the case of proceedings for contempt of the Tribunal" the Tribunal is to be constituted by one or more of the President and any other member who is a current or former NSW judicial officer. For proceedings seeking a civil penalty the Tribunal must be constituted by the President, a Deputy President, or a principal member who is an Australian lawyer of at least seven years standing: s 27(1)(c). Implicit in these provisions is that any issue of contempt must be dealt with in a distinct process where the Tribunal is constituted in a particular way. That is consistent with the fact that the functions of the Tribunal relating to contempt of civil penalties are to be addressed as part of its "enforcement jurisdiction" (ss 28(2)(d) and 33), in which the rules of evidence apply (s 38(3)). Self-evidently, action taken to enforce orders of the Tribunal can only be taken after those orders have been made. 7. Such powers as the Tribunal has to deal with contempt or civil penalty applications are dealt with by distinct processes which do not affect the characterisation of applications determined by the Tribunal under the GIPA Act. Conclusion with respect to functions under the GIPA Act 1. The nature of the relevant decision-making functions at issue here point strongly towards characterising the decision-making functions as involving the exercise of non-judicial power. The process employed by the Tribunal tends to point the same way, if not strongly so. The outcome of the Tribunal process is, at most, a decision varying or substituting the decision of the administrator, which decision is treated as a decision of the administrator, and where the burden of the decision relevantly falls on the administrator. Those characteristics also point strongly towards a non-judicial characterisation. 2. Taking these matters together, there are no matters requiring that the powers at issue be characterised as judicial and significant factors pointing the other way. In the result, none of the impugned functions of the Tribunal in reviewing decisions under the GIPA Act involve exercise of judicial power. They may validly be exercised by the Tribunal in proceedings which, otherwise, would fall within federal jurisdiction. Does the Tribunal relevantly exercise judicial power under the PPIP Act? 1. As explained above at [17]-[22] and [29], the applicant has brought two proceedings in the Tribunal invoking the PPIP Act (along with a related proceeding in the District Court). In one she alleges contravention of s 16 and seeks monetary compensation under s 55(2)(a) of that Act, and in the other she alleges contraventions of ss 8-14 and 16-18 and again seeks damages under s 55(2)(a). The issue is whether or not consideration of those alleged contraventions, and the possible award of a monetary remedy under s 55(2)(a), would involve the exercise of judicial power. Again, it is appropriate to outline the legislative framework, before turning to address the nature of the decision-making functions involved, the nature of the decision-maker, and the effects and enforceability of the decisions. Legislative framework 1. The object of the PPIP Act as indicated by its long title is, amongst other things, "to provide for the protection of personal information, and for the protection of the privacy of individuals generally". In fact, the effects of the Act are more limited than this purpose may suggest; in particular, the Act is directed to regulating the conduct of State government agencies, not the community generally. 2. Personal information is defined in s 4 as "information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion". That section goes on to provide examples of what does and does not fall within that definition. 3. Part 2 Div 1 of the Act sets out a number of "information protection principles". These principles regulate the handling of personal information by public sector agencies, they do not regulate the world at large – the principles are expressed as applying to such agencies, and the point is confirmed by s 20(1). The term "public sector agency" is defined in unsurprising terms in s 3(1), and relevantly includes the NSW Police Force. The principles are subject to various exemptions set out in Pt 2 Div 3. The information protection principles relate to the treatment of personal information, including its collection, retention, access, alteration, confirmation, use and disclosure. For example, s 16 – which the applicant invoked in both of the relevant Tribunal proceedings – provides as follows: A public sector agency that holds personal information must not use the information without taking such steps as are reasonable in the circumstances to ensure that, having regard to the purpose for which the information is proposed to be used, the information is relevant, accurate, up to date, complete and not misleading. 1. Section 21 is of some importance: Agencies to comply with principles (1) A public sector agency must not do any thing, or engage in any practice, that contravenes an information protection principle applying to the agency. (2) The contravention by a public sector agency of an information protection principle that applies to the agency is conduct to which Part 5 applies. 1. The application of the principles to public sector agencies may be modified by privacy codes of conduct: ss 20(2)(a) and 30. Part 3 Div 1 of the Act deals with those codes. They may be made by the Minister for the purpose of protecting the privacy of individuals: ss 29(1), 31. They may "regulate the collection, use and disclosure of, and the procedures for dealing with, personal information held by public sector agencies": s 29(2). An agency must comply with any such code which applies to it, and a contravention is conduct to which Pt 5 applies: s 32. 2. Part 4 of the Act provides for there to be a Privacy Commissioner. Amongst other functions, the Commissioner may undertake inquiries and investigations: ss 38-39. Under Pt 4 Div 3 the Commissioner may receive and investigate privacy complaints. If a decision is made to deal with a complaint, the Commissioner must endeavour to resolve a complaint being dealt with by conciliation (s 49(1)), and may also make a written report (s 50). But the Commissioner does not relevantly have determinative powers. 3. The consequences of a failure to comply with either an applicable information protection principle or privacy code of practice is dealt with by Pt 5: ss 21(2), 32(1), 52(1). The Part is headed "Review of certain conduct". There are some oddities in some of the drafting. Section 53 is headed "Internal review by public sector agencies", but in fact deals with primary review, not a second review. Section 53(1) provides that a person "who is aggrieved by the conduct of a public sector agency is entitled to a review of that conduct". The review is to be undertaken by a person in the public sector agency concerned who (amongst other things) was not substantially involved in the matter the subject of the application: s 53(2) and (4). The agency can request the Privacy Commissioner to undertake the review on its behalf, and the Commissioner must in any case be kept informed: s 54. The review by the agency officer or the Commissioner does not itself produce a decision as to the appropriate resolution. Rather, that decision is to be taken by the agency in question, as provided by s 53(7): Following the completion of the review, the public sector agency whose conduct was the subject of the application may do any one or more of the following— (a) take no further action on the matter, (b) make a formal apology to the applicant, (c) take such remedial action as it thinks appropriate (eg the payment of monetary compensation to the applicant), (d) provide undertakings that the conduct will not occur again, (e) implement administrative measures to ensure that the conduct will not occur again. 1. If a person who has made an application for internal review under s 53 is not satisfied with either the findings of the review or the action by the agency, they may apply to the Tribunal "for an administrative review under the [ADR Act] of the conduct that was the subject of the application": s 55(1). Section 55(2) sets out the range of actions that the Tribunal may take on reviewing the conduct of the public sector agency concerned, as follows: On reviewing the conduct of the public sector agency concerned, the Tribunal may decide not to take any action on the matter, or it may make any one or more of the following orders— (a) subject to subsections (4) and (4A), an order requiring the public sector agency to pay to the applicant damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct, (b) an order requiring the public sector agency to refrain from any conduct or action in contravention of an information protection principle or a privacy code of practice, (c) an order requiring the performance of an information protection principle or a privacy code of practice, (d) an order requiring personal information that has been disclosed to be corrected by the public sector agency, (e) an order requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant, (f) an order requiring the public sector agency not to disclose personal information contained in a public register, (g) such ancillary orders as the Tribunal thinks appropriate. 1. The Tribunal has a discretion whether to make any of those orders. It is not obliged to take action even if it concludes that the conduct in question contravened an information protection principle or a privacy code of practice, for example because an agency has already responded to the breach in an adequate way: see eg Vice Chancellor Macquarie University v FM (No 2) (GD) [2004] NSWADTAP 37 at [54]; KP v Narrandera Shire Council (GD) [2011] NSWADTAP 15 at [23]. 2. The respondents suggested, conversely, that the Tribunal could make an order even if the alleged contravention was not made out; for example, the Tribunal might not be satisfied that the contravention as alleged was made out, but was still concerned that aspects of the agency's record-keeping practices were inadequate and order remedial steps (under s 55(2)(b), (c) or (g)). Whether or not that is so generally – a point it is not necessary to determine – that is not the position in relation to s 55(2)(a) orders for damages. That remedy is expressed to be "by way of compensation for loss or damage suffered because of the conduct". The other paragraphs of s 55(2) do not refer in terms to past conduct. Each of ss 21(2) and 32(2) refer to a "contravention" by an agency being "conduct to which Part 5 applies". The damages remedy would not have been provided if the conduct in question did not constitute a contravention of an information protection principle or a privacy code. 3. The Tribunal may only award damages under s 55(2)(a) if satisfied that the applicant has "suffered financial loss, or psychological or physical harm, because of the conduct" of the agency: s 55(4)(b). There is also an exclusion relating to convicted inmates: s 55(4A). 4. If the Tribunal is of the opinion that the chief executive officer or an employee of the agency concerned has failed to exercise in good faith a function conferred on them by or under the Act, it may take appropriate measures to bring the matter to the attention of the responsible Minister: s 55(5). 5. As noted, s 55(1) provides that the person aggrieved may apply for "an administrative review" under the ADR Act. Section 55(3) provides that nothing in the section "limits any other powers that the Tribunal has under Division 3 of Part 3 of Chapter 3" of the ADR Act, which manifests an understanding that the Tribunal is exercising jurisdiction under that division of the ADR Act. However, there are tensions at play here. As explained above at [63]-[64], under s 63(3), within that division of the ADR Act, the Tribunal may decide to affirm, vary or set aside the decision under review. If it varies or makes a substitute decision then that decision is taken to be the decision of the administrator and, unless otherwise ordered by the Tribunal, with effect on and from the date of the administrator's actual decision: s 66. It follows from s 55(3) of the PPIP Act that the Tribunal can choose simply to vary, substitute or affirm a decision made by the agency, in which case it is standing in the shoes of the administrator. If it limits itself in that way, then the provision in s 66(2) of the ADR Act that such a decision is taken to be that of the administrator is apposite. 6. However, s 55(2) of the PPIP Act goes further than s 63(3) of the ADR Act. When exercising those powers the Tribunal is not merely standing in the shoes of the agency. The powers of the Tribunal set out in s 55(2) of the PPIP Act are distinct powers, expressed differently to the powers given to the agency itself in s 53(7) of that Act. Further, the orders it may make under s 55(2) are not ones made in the voice of the agency; rather, they are orders directed to the agency requiring it to take the identified action. The characterisation in s 66(2) of the ADR Act is inapposite for such an order. 7. Another oddity here is that applications under the PPIP Act are not expressly included in the list of matters allocated to the Administrative and Equal Opportunity Division in cl 3 of Sch 3 of the CAT Act (in contrast, for example, to applications under the GIPA Act). However, given that applications under s 55 of the PPIP Act are applications for administrative review under the ADR Act, and given the absence of any other allocation of such matters within the CAT Act, the best understanding is that applications under s 55 are allocated to that Division. The two Tribunal matters brought by the applicant at issue here were dealt with by that Division. In that context, the general process employed, and the appeal rights, are as outlined above with respect to the GIPA Act. The nature of the decision-making functions exercised by the Tribunal 1. Just as for the GIPA Act, it is significant that the PPIP Act only regulates public sector agencies. Similarly to the GIPA Act, it addresses aspects of governmental record-keeping, being the collection, retention and handling of personal information. The context, thus, is administrative. 2. The criteria set out in the information protection principles are, to a significant extent, rather amorphous, evaluative and directed to the way in which administrative processes are undertaken. The point is sufficiently made by reference to s 16 (quoted in full above at [109]), which prohibits the use of personal information without taking reasonable steps to ensure, in light of the purpose of the use, that the information is "relevant, accurate, up to date, complete and not misleading". The character of the criteria points toward the power being characterised as administrative. 3. The legal norms established by the Act are ones related to protection of privacy in the way public sector agencies deal with personal information. Those are not norms characteristically or historically exercised in courts. 4. Tied to that point, the rights created are not independent, pre-existing rights. Like those in the GIPA Act, they are given effect in the manner and to the extent set out in the statutory scheme. A person aggrieved by the conduct of a public sector agency may, after a review, obtain a decision from the agency of the kind set out in s 53(7). If they are not satisfied with the findings of the review or the agency decision then, under s 55, they may go to the Tribunal. There is no suggestion in the PPIP Act that these rights may directly be enforced in the courts. Further, s 69(1) of the Act provides that "[n]othing in Part 2 or 3 gives rise to, or can be taken into account, in any civil cause of action", and specifically does not "create in any person any legal rights not in existence before the enactment of this Act", nor "affects the validity, or provides grounds for review, of any judicial or administrative act or omission". Section 69(2) provides that subsection (1) "is subject to sections 21 and 32", which refer to Pt 5 of the PPIP Act, which creates the statutory review rights. 5. It is not necessary to consider here how s 69(1) may affect or relate to administrative law actions relating to acts or failures to act in the way required by the PPIP Act: cf Patsalis v New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307; Kaldas v Barbour (2017) 107 NSWLR 341; [2017] NSWCA 275. What is pertinent here is that s 69 serves to confirm that such rights to relief as are created by the Act are to be pursued by the means provided in the Act. There could be no tortious claim for breach of statutory duty. To the extent that "damages" may be claimed, that is done through seeking an order from the Tribunal under s 55(2)(a). 6. That point leads to consideration of the nature of the orders that may be made by the Tribunal. Leaving aside paragraph (a), the orders provided for in s 55(2) are ones requiring the agency to do or not do certain things in connection with the information protection principles or privacy codes of practice. That is so even for s 55(2)(e), which authorises an order "requiring the public sector agency to take specified steps to remedy any loss or damage suffered by the applicant". That type of order requires the taking of remedial steps, in distinction to the payment of money, which is addressed by paragraph (a). 7. The powers in s 55(2)(b)-(g) bear some resemblance to mandatory or prohibitive injunctions that could be issued by a court. But they are specifically addressed to how the public sector agency should act; they cannot be addressed to non-government actors. Although they are expressed in more specific terms than the provisions in s 53(7) relating to what the agency may decide to do after a review, they can be characterised as "remedial action" (s 53(7)(c)) or "administrative measures" (s 53(7)(e)). Thus even if they are the sorts of orders which could have been made in the exercise of judicial power, they are also decisions which could be made as an exercise of administrative power. 8. Section 55(2)(a) – an order requiring the agency to pay "damages not exceeding $40,000 by way of compensation for any loss or damage suffered because of the conduct" – is of a somewhat different nature. As explained above at [116], that remedy depends upon there having been a finding of a contravention of an information privacy principle or a privacy code. Damages have been described as "an award in money for a civil wrong": James Edelman, McGregor on Damages (21st edition, Sweet & Maxwell, 2021), [1-001]. Damages is a remedy characteristically and historically awarded by courts as an exercise of judicial power. 9. The federal legislative scheme considered in Brandy provided for a federal administrative commission to determine remedies for breach of anti-discrimination norms, including a discretionary remedy that the respondent "pay to the complainant damages by way of compensation for any loss or damage suffered by reason of the conduct of the respondent" (see at 253). The commission's determination was not binding of itself, but it was required to be registered in the Federal Court. After registration it had the effect of an order of the Court, subject to rights of "review" being exercised by the respondent in the Court. The High Court unanimously held the registration and review provisions invalid. Mason CJ, Brennan and Toohey JJ said the following in relation to the damages issue (at 258-259, citation omitted): [I]t has always been accepted that the punishment of criminal offences and the trial of actions for breach of contract and for wrongs are inalienable exercises of judicial power. The validity of that proposition rests not only on history and precedent but also on the principle that the process of the trial results in a binding and authoritative judicial determination which ascertains the rights of the parties. So, when A alleges that he or she has suffered loss or damage as a result of B's unlawful conduct and a court determines that B is to pay a sum of money to A by way of compensation, there is an exercise of judicial power. The determination involves an exercise of such power not simply because it is made by a court but because the determination is made by reference to the application of principles and standards "supposed already to exist". And the determination is binding and authoritative in the sense that there is what has been described as an immediately enforceable liability of B to pay A the sum in question. Consequently, even if the determination in such a case were to be made by an administrative tribunal and not by a court, the determination would constitute an exercise of judicial power, although not one in conformity with Ch III of the Constitution. 1. Many statutory schemes provide for administrative bodies to make determinations of compensation, workers compensation being a longstanding example. That would not generally involve an exercise of judicial power. But workers compensation statutes do not generally depend upon a finding of a wrong, that is, a contravention of a legal norm or duty. That is not to say that any compensatory determination connected to consideration of a legal norm or duty will be characterised as inherently judicial. For example, for some time administrative tribunals have determined compensation payable for unfair dismissal taking account of a norm to the effect of the dismissal being "harsh, unjust or unreasonable": note Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 438-439; [1995] HCA 24; see also McGregor on Damages at [1-007]. In determining whether the exercise of a power to order compensation is judicial much will turn on the details of the legislative regime, including how clearly the legal norm is expressed as a duty, the nature of the legal criteria involved in the norm, the process for determining the issue, the precise legal effect of a determination, and whether the remedy is discretionary. 2. The respondents argued that the power in s 55(2)(a) was of a kind with the power of the agency itself, in s 53(7)(c), to take "such remedial action as it thinks appropriate (eg the payment of monetary compensation to the applicant)". Counsel sought to characterise that agency power as "almost in the nature of an act of grace payment", and suggested that s 55(2)(a) could be seen in the same way. The submission has some basis insofar as the Tribunal's remedy is discretionary. It has long been recognised that governments may make compensatory payments for maladministration. Thus, for example, the Ombudsman Act 1974 (NSW) provides that the Ombudsman may recommend, and a responsible Minister or local government authority may then authorise, payment of "compensation": ss 26(2)(d1) and 26A. Counsel for the respondent also submitted that the compensatory power had to be understood as part of "a scheme for public administration". Again, there is some force in that characterisation, as reflected in the nature of the statutory norms and the fact that they only apply to public sector agencies, together with the fact that the other remedies in s 55(2) can be characterised as capable of being exercised by administrative decision. 3. On the other hand, the Tribunal may only make a s 55(2)(a) order if it concludes that the respondent agency has contravened one of the applicable principles or a code, and if it is satisfied that the applicant has suffered financial loss, or psychological or physical harm, because of the agency's conduct: s 55(4)(b). That is suggestive more of an ordinary compensatory power for breach of a legal norm, albeit one that is discretionary. 4. In sum, there are many features pointing to a non-judicial characterisation of the powers: the context of the scheme is governmental administration; the criteria involved (in particular in the information protection principles) are rather evaluative and administrative in nature; enforcement of the types of norms in the PPIP Act are not characteristically or historically exercised in courts; the rights at issue are not independent, pre-existing rights, and they are given effect in the manner and to the extent set out in the statutory scheme; the Tribunal's remedies, other than that in s 55(2)(a), are of a kind which can be exercised by an administrative decision-maker. However, the power granted by s 55(2)(a) is of a kind characteristically exercised by courts and that points to exercise of that power being judicial. In light of the further discussion below, it is not necessary to determine if this factor would suffice of itself to conclude that the power could not be exercised by the Tribunal in the proceedings at hand. The nature and process of the decision-maker 1. Much the same points arise here as were discussed at [89]-[96] above with respect to the GIPA Act. Those points do not point significantly either way, save that it is relevant that the Tribunal need not be constituted by lawyers when determining such applications. The outcome of the decision and the effect of Tribunal orders 1. The discussion at [97]-[103] is also relevant here. However, there are two important further features. First, as explained at [119]-[120], when exercising the powers in s 55(2) the Tribunal is not merely standing in the shoes of the administrative decision-maker. It is making orders directed to the agency, rather than in lieu of the agency's own decision. That difference does not suggest of itself that the powers are judicial, but it removes a consideration militating in favour of them being characterised as administrative. 2. The second difference is more significant and arises as regards s 55(2)(a) in particular. An order made under that provision is for payment of money. Under s 78(1) of the CAT Act, such an order "is to be certified by a registrar" (of the Tribunal – s 4(1)). If that certificate is "filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount" then the certificate "operates as such a judgment": s 78(3). It would be enforceable in the same way as a judgment of the relevant court. 3. The respondents argued that this provision did not apply to an order under s 55(2)(a). Whilst they acknowledged it was capable of applying according to its terms, they suggested that the power was of a kind with the "act of grace payment" provision in s 53(7)(c), and as such was "not the kind of order to which s 78 of the CAT Act is speaking". As discussed above at [132]-[133], a difficulty with this argument is that the s 55(2)(a) power has the characteristics of an ordinary, albeit discretionary, compensatory power for breach of a legal norm. There is no persuasive basis to suggest that it would be inconsistent with the PPIP Act for the s 78 mechanism to apply to such an order. One would expect a government agency readily to comply with a Tribunal order to pay compensation. However, not every agency will act promptly, and complainants may in some cases usefully avail themselves of the registration mechanism. 4. As noted above, there is no general constitutional restriction on the State authorising the Tribunal to exercise judicial power. If there were, then pursuant to s 31 of the Interpretation Act 1987 (NSW) it is possible the legislation might be read in such a way that s 78 did not apply to an order under s 55(2)(a). However, the constitutional limitation here is only that the State "lacks legislative capacity" to confer judicial power on the Tribunal with respect to matters in federal jurisdiction: Citta at [1]. The majority of claims under s 55(2) would not be affected by that limitation. There is no occasion to read down or sever s 78 generally, and counsel for the respondents made clear that the submission about the inapplicability of s 78 was "not a severance or a reading down argument". The provision cannot be read down only in some matters and not others. And to sever it only in some matters would be to alter the operation of the legislative scheme. Section 31 of the Interpretation Act operates such that the grant of jurisdiction to the Tribunal does not operate in matters in federal jurisdiction: see Burns v Corbett at [64]; Citta at [1]. 5. Given the conclusion that s 78 of the CAT Act can apply to orders made under s 55(2)(a) of the PPIP Act, the decision in Brandy becomes materially indistinguishable. Here, as in that case, a decision of an administrative body is given the effect of a decision of a court. As Mason CJ, Brennan and Toohey JJ said at 260, "an order which takes effect as an exercise of judicial power cannot be made except after the making of a judicial determination". The character of the order affects the characterisation of the power being exercised by the Tribunal. No argument was made that Brandy is distinguishable on the basis that non-federal courts may be authorised by States to exercise non-judicial power. 6. The effect of s 78 on an order made under s 55(2)(a) of itself leads to the conclusion that the Tribunal would be exercising judicial power if and when such an order is sought. Section 78(1) is directed to "recovery of any amount". It does not apply to non-monetary orders, and thus is not relevant to orders made under s 55(2) otherwise than under paragraph (a). However, if and when an order is sought under s 55(2)(a), in circumstances where the claim is of a kind that otherwise falls within federal jurisdiction, then the matter is outside the Tribunal's jurisdiction: note Citta at [31]. 7. The respondents sought to rely on the fact that in Brandy only the registration and review provisions were held to be invalid. However, that was in a context where the decision of the administrative body was not itself binding: see at 254. Here, an order made under s 55(2)(a) would be binding on the relevant agency regardless of whether or not it was registered pursuant to s 78: see similarly Citta at [12]-[16]. The position here is different from the position relating to possible applications for contempt or a civil penalty. There, as discussed above at [102], any such order can only be made after a further application determined by the Tribunal, constituted in a particular manner. It is a distinct, further exercise of power by the Tribunal. Here, no further action by the Tribunal is required after a s 55(2)(a) order is made, save for certification by a registrar. It is implicit in s 78 that that should occur as a matter of course. After that, the applicant may unilaterally register the certificate in a court. Such reasoning led this Court to conclude in its decision in Burns v Corbett that the Tribunal was similarly exercising judicial power under the Anti-Discrimination Act 1977 (NSW): (2017) 96 NSWLR 247; [2017] NSWCA 3 at [31]. The orders made by this Court in that case were to the effect that the Tribunal did not have jurisdiction to resolve the complaint. Those orders were upheld by the High Court. The issue of whether or not the Tribunal was exercising judicial power was not addressed by the High Court. 8. Different considerations may arise if, instead of s 78 enabling registration, the statutory regime simply provided (as many statutes do) that any monetary determination made by the Tribunal could be enforced as a debt in a court of competent jurisdiction. The enforceability of the order might then depend upon an independent exercise of judicial power, albeit one in which little may be in controversy. It might then also be necessary to consider whether the terms of s 55(2)(a) itself necessarily involve judicial power (the issue left unresolved above at [134]). As it is, the conclusion that the Tribunal would be exercising judicial power is reached simply because of the applicability and effect of s 78 of the CAT Act. 9. This conclusion only arises insofar as relief is sought under s 55(2)(a). The other sorts of orders provided for in s 55(2) are not monetary and cannot be registered in a court under s 78. Nothing in the analysis above suggests that such orders involve the exercise of judicial power. Here, however, the applicant did seek relief under s 55(2)(a). Conclusion and orders 1. The Tribunal was and is not prevented from determining the applicant's various applications insofar as they related (only) to her claims under the GIPA Act. None of the issues raised by her under that Act would involve the exercise of judicial power. 2. However, the two proceedings in which she expressly or impliedly made a claim for damages under s 55(2)(a) of the PPIP Act would involve an exercise of judicial power. Those claims fall within matters in federal jurisdiction and cannot be determined by the Tribunal in light of Burns v Corbett. The whole proceedings would, however, be capable of resolution by the District Court pursuant to Pt 3A of the CAT Act. 3. The two Tribunal proceedings in question are those discussed at [17]-[22] and [29]-[30] above. The former proceeding has been put on hold pending this Court's decision. The latter proceeding has concluded on grounds not related to jurisdiction or to the merits of the applicant's claim. Even so, the Tribunal was not authorised to exercise jurisdiction in the proceeding, as the applicant had asserted in the Tribunal, and she is entitled to relief indicating as much. 4. The applicant sought relief in the nature of prohibition. However, there is no reason to doubt that the Tribunal and the respondents will proceed in accordance with the determination of this Court. Declaratory relief will suffice. The two Tribunal proceedings in question were raised in the context of the State Proceeding in this Court, so the declaratory relief should be granted in that case. The Secretary Proceeding only raised an issue relating to the GIPA Act. That case therefore should be dismissed. 5. As regards costs, each side has had some success. My provisional view is that the simplest and most appropriate course is that there be no order as to costs in either proceeding in this Court. An alternative approach would be to order costs in favour of the applicant in whole or part in the State Proceeding (in which she has had partial success), and costs in favour of the respondents in the Secretary Proceeding (in which the respondents have succeeded). Such orders would tend to favour the respondents, given that they would be able to claim costs relating to their legal representation whereas the applicant (being self-represented) would not. However, that approach may involve undue transaction costs relating to assessment in either proceedings, and also seems unduly onerous on the applicant in all the circumstances. In any event, the parties sought to be heard separately on costs. The appropriate way to proceed is to propose that an order be made in each proceeding that there be no order as to costs, subject to further consideration if either side seeks alternative orders as to costs. Any such application may be pursued pursuant to the timetable set out in this Court's orders. 6. In the State Proceeding, matter number 2023/53137 (previously numbered 2022/155046), the orders of the Court should therefore be as follows: 1. The plaintiff has leave to amend prayer 1 of the amended summons filed on 26 July 2022 so as to: 1. add the following text between "2022/00123205" and "because" in the chapeau of the prayer: ", and grant relief in the nature of prohibition accordingly,"; and 2. add as subparagraph (ii) the words "the conferral of administrative power in respect of the matter listed in s 75(iv) of the Commonwealth Constitution is invalid". 1. Declare that the Civil and Administrative Tribunal had and has no jurisdiction to determine the claims made by the applicant in proceedings number 2019/382033 and proceedings number 2022/194626. 2. Prayer 1 of the amended summons is otherwise dismissed. 3. If either side seeks an order relating to the costs of the proceedings before this Court other than that proposed at [149] of this Court's judgment then they may file and serve submissions of no more than three pages, along with any supporting materials, within five business days of these orders, with any reply submissions of no more than one page to be filed and served within a further two business days. 1. In the Secretary Proceeding, matter number 2022/295461, the orders of the Court should be as follows: 1. The proceedings are dismissed. 2. If either side seeks an order relating to the costs of the proceedings before this Court other than that proposed at [149] of this Court's judgment then they may file and serve submissions of no more than three pages, along with any supporting materials, within five business days of these orders, with any reply submissions of no more than one page to be filed and served within a further two business days. 1. GRIFFITHS AJA: I agree with Kirk JA's reasons and the orders he proposes. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 August 2023