Reported Decision : (2000) 48 NSWLR 462 New South Wales Court of Appeal CITATION : Bignell v New South Wales Casino Control Authority & Anor [2000] NSWCA 38 FILE NUMBER(S) : CA 40396/98 HEARING DATE(S) : 19 November 1999 JUDGMENT DATE : 15 March 2000 Maryanne Bignell - Appellant PARTIES : New South Wales Casino Control Authority - First Respondent Equal Opportunity Tribunal - Second Respondent JUDGMENT OF : Sheller JA at 1; Stein JA at 32; Giles JA at 45 LOWER COURT JURISDICTION : Supreme Court LOWER COURT 30102/97 FILE NUMBER(S) : LOWER COURT Black AJ JUDICIAL OFFICER : S Winters - Appellant COUNSEL : R W White SC & A J Silink - First Respondent Submitting - Second Respondent SOLICITORS : S Winters, Fredrick Jordan Chambers, Sydney - Appellant I V Knight, Crown Solicitor, Sydney - Respondents CATCHWORDS : STATUTORY CONSTRUCTION - privative clause - s 155(1) of Casino Control Act 1992 - decision of Casino Control Authority under the Act "is final and not subject to appeal or review" - Authority decides not to grant special employee licence - complaint that it discriminated on the ground of marital status - complaint referred to Equal Opportunity Tribunal - whether enquiry by Tribunal precluded by privative clause - By Sheller JA - no, because if complaint upheld the decision was not a decision under the Act - By Stein and Giles JJA - no, because the Tribunal's enquiry would not be an appeal or review of the Authority's decision - Discussion of meaning of "review". DECISION : (1) If leave to appeal be necessary, grant leave to appeal; (2) Appeal allowed; (3) Orders made by Black AJ on 22 May 1998 set aside, and in lieu thereof dismiss the Authority's appeal to the Supreme Court with costs; (4) Order that the Authority pay Ms Bignell's costs of the appeal, but have a certificate under the Suitors Fund Act if qualified. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40396/98 ALD 30102/97 SHELLER JA STEIN JA GILES JA 15 March 2000 MARYANNE BIGNELL v NEW SOUTH WALES CASINO CONTROL AUTHORITY & ANOR JUDGMENT 1 SHELLER JA: Introduction I have had the privilege and benefit of reading the reasons for judgment in draft prepared by Giles JA. His Honour has set out the legislative provisions and factual matters involved in deciding this appeal. I shall try to avoid unnecessary repetition. I agree for the reasons Giles JA has given that the specific orders the appellant sought to prevent or limit publicity of her partner's background should not be made. 2 This appeal from the Administrative Law Division of the Court concerns the effect of a privative clause in the Casino Control Act 1992 (the CC Act) and whether that effectively denied the Equal Opportunity Tribunal jurisdiction to hear a complaint that, in refusing the complainant's application for a special employee licence, the respondent Authority discriminated against her on the ground of her marital status. Casino Control Act 3 The respondent Authority was constituted by s133 of the CC Act. Section 141(1) sets out the general functions of the Authority and s141(2) the specific functions of the Authority which include (a) to consider and determine applications for casino licences; and (b) to consider and determine applications for other licences under the Act. Section 141(4) provides: "In the exercise of its functions, the Authority is not required to observe the rules of natural justice (except to the extent that it is specifically required to do so by this Act)." 4 Sections 43, 44, 50 and 52 of the CC Act are in Part 4 which is entitled "Licensing of casino employees". As Giles JA has pointed out in his reasons for judgment, s44(1) provides that a person must not exercise in or in relation to a casino any of the functions of a special employee except in accordance with the authority conferred on the person by a licence. Section 43 defines "special employee" to mean a person who is employed or working in a casino in a managerial capacity or is authorised to make decisions that regulate the operations in a casino or is employed or working in a casino in any capacity relating to, amongst other activities, the conduct of gaming, the movement of money about the casino, the exchange of money to patrons in the casino, the counting of money and casino security. 5 Section 50(1) of the CC Act requires the Authority to refer each application for a licence to the Director of Casino Surveillance (the Director). Section 50(2) provides that the Director is to investigate and inquire into each application and report to the Authority, recommending either that the application be granted or that it be refused. Section 50 (3) provides: "If the Director's recommendation is that an application be refused, the Authority is to notify the applicant in writing of that recommendation and allow the applicant at least 14 days to make submissions to the Authority as to why the application should not be refused." 6 Section 52 provides as follows: "(1) The Authority is to consider an application for a licence and is to take into account the report and recommendation of the Director and any submissions made by the applicant within the time allowed. (2) The Authority is not to grant a licence unless satisfied that the applicant is a suitable person to exercise the functions that the proposed licence will authorise the person to exercise. (3) For that purpose, the Authority is to make an assessment of: (a) the integrity, responsibility, personal background and financial stability of the applicant, and (b) the general reputation of the applicant having regard to character, honesty and integrity, and (c) the suitability of the applicant to perform the type of work proposed to be performed by the applicant as a licensee. (4) The Authority is to determine the application by either granting a licence to the applicant or declining to grant a licence, and is to notify the applicant in writing of its decision. (5) The Authority is not required to give reasons for its decision but may give reasons if it thinks fit." Complaint of discrimination 7 In July 1995, the appellant, Maryanne Bignell, applied for a special employee's licence. The Authority referred her application to the Director who recommended that the application be refused. In a letter of 15 January 1996, the Chief Executive of the Authority wrote to the appellant stating: "The Director's reason for his recommendation is that your 'close association' with a person with a serious criminal history and your willingness to continue the relationship despite knowledge of his criminal history adversely affect your personal background to the extent that you should not be considered to be a suitable person to be granted a special employee licence." 8 Section 49(1) of the CC Act does not speak of a "close associate". The subsection enables the Authority by notice in writing to require a person who, in the opinion of the Authority, has "some association or connection" with an applicant for a special employee licence, to provide information and produce and permit examination of records. "Association or connection" is not defined. Section 13(1) in Pt 2, entitled "Licensing of casino", defines a "close associate" of an applicant "for, or the holder of, a casino licence" for the purposes of the CC Act as a person who is or will be entitled to exercise any relevant power in the casino business of the licence applicant or holder and by virtue of that power is or will be able, in the opinion of the Authority, to exercise a significant influence over or with respect to the management or operation of that casino business. 9 To state a hypothetical case, the Authority may consider that it is relevant that the spouse of an applicant provide information about criminal convictions for dishonesty. The fact that such a spouse was living with the applicant at the time of the application could be a factor relevant to the applicant's suitability. No doubt a conclusion taking account of this fact would be said not be a conclusion which amounted to discrimination against the applicant on the ground of marital status; compare Waters v Public Transport Corporation (1991) 173 CLR 349 at 359 and Waterhouse v Bell (1991) 25 NSWLR 99 at 105 per Clarke JA. It would not be the applicant's status or condition of being married but the applicant's association with a person with a history of dishonesty that was relevant. 10 In substance, the appellant claims that by virtue of the provisions of Pt 4 Div 2 of the Anti-Discrimination Act 1977 (the AD Act), the Authority acted unlawfully when it refused her application for a special employee licence by discriminating against her on the ground of her marital status. Application to Tribunal 11 The appellant chose the obvious avenue of redress for the alleged contravention of the AD Act by making a complaint pursuant to s88(1). In the way that Giles JA has explained, this complaint came before the Equal Opportunity Tribunal constituted under the AD Act. On an inquiry into the complaint pursuant to s96, the Tribunal held that it had jurisdiction to hear the appellant's complaint. This it did in the face of the Authority's submission that the effect of s155(1) of the CC Act precluded such jurisdiction. Section 155 provides: "(1) Except as otherwise provided in this section, a decision of the Authority under this Act is final and is not subject to appeal or review. (2) A person aggrieved by a decision of the Authority to cancel or suspend a casino licence or to amend the conditions of a casino licence may appeal from the decision to the Supreme Court on a question of law. (3) The Supreme Court is to hear and determine the appeal and make such order as it thinks appropriate by reason of its decision, including, without limiting the Court's power to make such orders: (a) an order affirming or setting aside the decision of the Authority, and (b) an order remitting the matter to the Authority to decide again in accordance with the directions of the Court. (4) Proceedings or an appeal in respect of a decision of the Authority do not operate to stay the decision appealed from unless the Supreme Court otherwise orders." 12 If, after its decision that it had jurisdiction, the Tribunal had proceeded with the inquiry and found the complaint substantiated, the Tribunal could, pursuant to s113(1)(b) of the AD Act, have ordered the Authority to pay the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of its conduct, enjoined the Authority from continuing or repeating any conduct rendered unlawful by the AD Act and ordered the Authority to perform any reasonable act or course of conduct to redress any loss or damage suffered by the appellant. The Tribunal was also empowered to declare void in whole or in part and either ab initio or from such other time as was specified in the order any contract or agreement made in contravention of the AD Act. Anti-Discrimination Act 13 Part 4 of the AD Act concerns discrimination on the ground of marital status. This is defined in s4 to mean the status or condition of being, inter alia,: "(f) in cohabitation, otherwise than in marriage, with a person of the opposite sex." 14 Section 39 in Div 1 of Pt 4 under the heading "What constitutes discrimination on the ground of marital status" provides: "(1) A person ('the perpetrator') discriminates against another person ('the aggrieved person') on the ground of marital status if, on the ground of the aggrieved person's marital status … the perpetrator: "(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different marital status ….." 15 Sections 40 to 46 in Div 2 headed "Discrimination in Work" make it unlawful for various classes of persons to discriminate against persons on the ground of marital status. Relevantly, s44(a) provides that it is unlawful for an authority which is empowered to confer an authorisation or a qualification that is needed for engaging in an occupation to discriminate against a person on the ground of marital status by refusing to confer the authorisation or qualification. Part 6 of the AD Act entitled "General exceptions to this Act" includes s54(1) which provides that "[n]othing in the Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of: (a) any other Act, whether passed before or after this Act; …." Application to the Administrative Law Division 16 The Authority applied to the Administrative Law Division of the Court for an order setting aside the Tribunal's decision and for a declaration that the Tribunal had no jurisdiction to entertain the appellant's complaint. Black AJ heard the application and gave the relief sought. His Honour said: "in my judgment the meaning of 'review' in section 155(1) includes an examination of a decision by an entity which has power to make legally enforceable orders against one or more of the parties to the decision in the light of that examination…… It is clear in my judgment that in order to find the complaint substantiated by reason of section 44 the Tribunal would have to find that the plaintiff refused to grant a licence to the first defendant on the ground of marital status as defined in section 39. That would involve examining the grounds of the decision made by the plaintiff and in my judgment comes within the meaning of the word 'review' in section 155(1) of the Casino Control Act 1992." The appellant appeals from that decision. Operation of section 155 (1) of the CC Act 17 In Darling Casino Limited v New South Wales Casino Control Authority (1997) 191 CLR 602, Gaudron and Gummow JJ (at 629 and following) expressed some view upon the operation of s155 on the circumstances of that case. Darling Casino Limited (DCL) sought to challenge in the Administrative Law Division the decision of the Authority to grant a casino licence to another applicant, Sydney Harbour Casino Pty Limited (SHC). In the High Court, DCL relied upon alleged jurisdictional errors in relation to the conditions for the exercise of the Authority's power to determine applications under s18 of the CC Act. To such errors, it submitted, s155(1) did not apply. Gaudron and Gummow JJ held that DCL had failed to make out either of the two errors it relied upon, which depended on the requirements of ss9(2) and 10(3) of the CC Act in one case and ss12 and 13 in the other. Brennan CJ, Dawson and Toohey JJ, in a short judgment, said: "For the reasons stated by Gaudron and Gummow JJ, we would hold that the Authority's decision was taken in conformity with the general provisions of the Act including ss9 and 10. It is therefore unnecessary to express any view as to the operation of s155 of the Act." Their Honours continued: "Although we agree with Gaudron and Gummow JJ that the administrative procedure adopted by the Authority in this case did not affect the validity of the exercise of its power under s18 to grant a casino licence, it should not be assumed that the exercise of a power conferred in general terms cannot be confined by the procedures adopted by a repository. If the power must be exercised in conformity with the rules of natural justice, a failure by the repository to adhere to a declared procedure may constitute or result in a failure to accord natural justice to a person whose interests are liable to affection by the exercise of the power. In such a case, an exercise of the power adversely to the interests of the person denied natural justice is liable to be set aside." 18 Section 141(4) of the CC Act provides that in the exercise of its functions, the Authority is not required to observe the rules of natural justice. But there are exceptions. In various places, the Act expressly enjoins the Authority to conform with certain of these rules. For example, s50(3) requires the Authority to notify an applicant if the Director's recommendation is that an application be refused and to allow the applicant at least 14 days to make submissions; see Kioa v West (1985) 159 CLR 550 at 582. Section 52(1) requires the Authority, in considering an application for a licence, to take into account the report and recommendation of the Director and any submissions made by the applicant within the time allowed. The Authority's failure to comply with these requirements could not be protected from judicial review by s155(1) for reasons that will appear. This is an exception to the broad protection s155(1) may at first sight be thought to give to the decisions of the Authority. The Hickman principle 19 In the Darling Casino case, submissions were made to the High Court about the significance of the reasoning of Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. At 630 Gaudron and Gummow JJ said: "In that case, Dixon J said that the effect of privative clauses, which purport to exclude judicial review entirely, is that decisions are not 'considered invalid if they do not upon their face exceed the ….authority [conferred by the legislation in question] and if they do amount to a bona fide attempt to exercise the powers [conferred] and relate to the subject matter of the [legislation]' Hickman at 617. A little later, he explained that such clauses 'have a protective operation upon the action of [decision-makers] acting irregularly or outside their formal authority' Hickman at 618." 20 Hickman concerned a privative regulation purporting to protect decisions made by a board established under the Commonwealth National Security Regulations to settle disputes between employers and employees in the coal mining industry. An overriding consideration was the constitutional impossibility of the legislature depriving the High Court of jurisdiction derived from s75(v) of the Constitution. 21 At 631 Gaudron and Gummow JJ stressed that the Hickman principle is a rule of construction. Their Honours said: "Accordingly, the question in this case is not one of the meaning and effect of the Hickman principle which seeks to reconcile 'the prima facie inconsistency between one statutory provision which seems to limit the powers of the [decision-maker] and another provision, the privative clause, which seems to contemplate that the [decision] shall operate free from any restriction' ( R v Coldham; Ex parte Australian Workers' Union (1983) 153 CLR 415 at 418, referring to R v Murray; Ex parte Proctor (1949) 77 CLR 387 at 398-9. See also Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 at 193-4). Rather, it is one of the meaning and effect of the statutory provisions in question. If there is an inconsistency, the Hickman principle requires that it be 'resolved by reading the …provisions together and giving effect to each' ( R v Coldham at 418). However, there are anterior questions: the extent to which the relevant statutory provisions, when properly construed, give rise to an inconsistency to be resolved in that way; and whether the decision in question is one that falls within the area of that inconsistency." 22 After discussing the federal constitutional constraints on the operation of privative clauses, their Honours said at 633: "However, the special character of s75 of the Constitution, to which we have referred, means that considerations which apply to privative clauses intended to protect decisions and orders of State officers acting pursuant to valid State laws are somewhat different from those which apply in the case of Commonwealth law. The operation of a State privative clause is purely a matter of its proper meaning ascertained in its legislative context. However, privative clauses, whether in State or Commonwealth legislation, are construed 'by reference to a presumption that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied' ( Public Service Association (SA) v Federated Clerks' Union (1991) 173 CLR 132 at 160, per Dawson and Gaudron JJ)." 23 After referring to textual constraints their Honours said at 634: "However and provided the intention is clear, a privative clause in a valid State enactment may preclude review for errors of any kind. And if it does, the decision in question is entirely beyond review so long as it satisfies the Hickman principle." 24 Their Honours reviewed the particular sections of the CC Act material to that case and, in the result, held that there had not been any 'wrong determination as to the existence of a fact' upon which depended the power of the Authority under the section in question, nor any 'wrong construction' placed upon the section or any other provision engaged in the exercise of the decision making power. They continued as follows (at 635): "There is one point we should add, because the Court of Appeal appears to have proceeded on a contrary view. It concerns the content of the phrase in s155(1), 'a decision of the Authority under this Act'. The phrase is not 'under or purporting to be under this Act'. Section 11 obliges the Authority to have regard to certain matters. Section 12 forbids the Authority to grant an application unless satisfied of the matters there specified and for that purpose the Authority is to consider the items specified in s12(2)(a)-(h). Section 13 contains a definition of 'close associate', a term used in s12. Sections 11, 12 and 13 are central to the legislative scheme. Section 155 cannot fairly be construed as declaring an intention of the legislature that the Authority is empowered and protected in respect of determinations under s18 reached other than upon satisfaction of the conditions which enliven its power. Those decisions would not have been made 'under this Act'." Review 25 With due respect to those who may think otherwise, I find it impossible to conclude that an inquiry, entered upon to determine whether in making its decision the Authority acted unlawfully, is not a review of that decision in the sense referred to by McLelland J, as his Honour then was, in the passage Giles JA has quoted from Delmore Pty Ltd v Commonwealth of Australia (1985) 2 NSWLR 179 at 185-6. McLelland J saw a clear distinction between a review of a decision, on the one hand, and a determination of the correctness or otherwise of a question which had been the subject of a decision, on the other. His Honour said (at 185-6): "In the first class of case, what is under examination is the act of the decision-maker. The examination may be directed to the correctness of the matter decided, or it may be directed to the validity of the process by which the decision was made, regardless of the correctness of the matter decided." I respectfully agree. Section 9 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), which McLelland J held did not deprive the Court of jurisdiction to give the relief sought, defined review as meaning review by way of three stipulated kinds of remedy. In the context of that definition his Honour said in the passage that Giles JA quoted that a Court could not properly be said to review a decision unless the act of the decision-maker, as such, was the subject of, or directly impugned by, one of the stipulated kinds of remedy. 26 Section 155(1) of the CC Act gives no indication that it is referring exclusively to any particular types of review such as those contemplated by s69 of the Supreme Court Act 1970. It is not necessary to undertake the task of marking the boundary between what is "review" within the meaning of s155(1), and what is not. Suffice it to say that in my opinion an inquiry of the sort instigated by the appellant in the Tribunal falls well within that boundary. 27 We are not here concerned with the definition of review found in s9 of the Administrative Decisions (Judicial Review) Act and discussed in the cases to which Giles JA has referred. In Bannister v See (1982) 42 ALR 78 at 81 Toohey J said that "review" is not a term of precision and added: "It may, as in the notion of judicial review of administrative action, subject an administrative decision to scrutiny by a court on a variety of grounds …." 28 In my opinion, the appellant's complaint to the Tribunal necessarily required the Tribunal to examine the correctness of the Authority's decision in not granting the appellant a special employee licence and the validity of the process by which that decision was made. In any event, the Authority's decision was the subject of and directly impugned by the remedy sought in the Tribunal. If the complaint is substantiated, the Tribunal is empowered to make orders. One such order might be to require the Authority to re-consider the application and enjoin it from making a decision on the ground of the appellant's marital status. The meaning and effect of sections 52 and 155 (1) of the CC Act 29 The decisive consideration in determining this appeal is not the meaning of the word "review" in s155(1), but how s155(1), properly construed, operates in respect of a determination of the Authority purporting to be made under s52, bearing in mind the duty of the Authority when determining an application for a licence. The decision of the Authority which s155(1) makes final and not subject to appeal or review is a decision of the Authority "under" the CC Act. The subsection does not protect decisions not made under the Act, even though they purport to be so. A decision by the Authority contrary to the requirements of s50(3) to refuse an application on the Director's recommendation without notifying the applicant of that recommendation and allowing the applicant at least 14 days to make submissions would not be protected despite s141(4) because it was not made "in the exercise of (the Authority's) function" under the Act. In this respect, there is no inconsistency between the meaning and effect of s155(1) and s141(4) or s52 of the CC Act. 30 The suitability of the applicant to exercise the functions that the proposed licence will authorise the person to exercise was according to the Chief Executive's letter of 15 January 1996, a matter taken into account by the Authority in accordance with the requirements of s52. It follows that the Authority was required to make an assessment of the matters listed in s52(3). The appellant alleges that the Authority acted outside these legislative directions and took into account her marital status by treating her less favourably than it would have treated a person of a different marital status in the same or not materially different circumstances. If the appellant makes out that allegation, the Authority's decision was not one protected by s155(1) because it was not a decision "under this Act". The CC Act does not permit the Authority to determine an application by granting or refusing to grant a licence not in conformity with the Act's requirements by perversely discriminating against the applicant on the ground of her marital status. Conclusion 31 I agree with the orders Giles JA has proposed. 32 STEIN JA: I will not repeat the facts which are set out in the draft judgment of Giles JA which I have had the benefit of reading. 33 The question posed by Giles JA at the commencement of his reasons for judgment may, in my opinion, be answered by a relatively simple inquiry. What are the powers of the Equal Opportunity Tribunal (the Tribunal) when holding an inquiry into a complaint made under the Anti-Discrimination Act 1977? Do any of these powers involve reviewing a decision of the Casino Control Authority and thus fall foul of the privative clause in s 155(1) of the Casino Control Act 1992? 34 In approaching these questions I do not believe that it is necessary to examine in any detail the meaning to be ascribed to 'review' in s 155. I accept that 'review' in the section means examining the correctness of a decision, in particular its validity or effectiveness. 35 Assuming that the Tribunal holds an inquiry into a complaint (alleging unlawful discrimination) its powers following the conclusion of the inquiry are to be wholly found in s 113 of the Anti-Discrimination Act. 36 Relevantly, these are to dismiss the complaint or find it to be substantiated. In the latter event, the Tribunal may order the payment of damages not exceeding $40,000 to the complainant by way of compensation. The Tribunal may also enjoin a respondent from continuing or repeating any unlawful conduct in breach of the Anti-Discrimination Act. 37 Further, the Tribunal may order the respondent 'to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant'. In addition, s 113(b)(iv) provides for an order declaring void a contract or agreement entered into in contravention of the Anti-Discrimination Act. 38 It is important to note the absence of any power in the Tribunal to set aside or declare void any decision made by a respondent, other than arguably where a contract or agreement has been entered into in contravention of the Act. With this possible limited exception to be found in s 113(1)(b)(iv), the decision remains a valid and intact decision. It is not rendered unlawful or ineffective. The decision stands notwithstanding that a finding that a complaint of unlawful discrimination is found to be substantiated. This is unsurprising since policy must acknowledge that a decision may still be the correct one notwithstanding that in the process of decision-making an act of unlawful discrimination under the Anti-Discrimination Act may have occurred. There are other policy reasons, eg. commercial, why the power to declare a decision to be invalid was not provided to the Tribunal when hearing a complaint of unlawful discrimination. 39 Looking at the express powers of the Tribunal if a complaint is found to be substantiated, it will be readily apparent, as Giles JA observes, that an order for payment of damages leaves the decision intact. Further, an order enjoining a repetition or continuation of the unlawful conduct (under the Anti-Discrimination Act) does not affect the validity of the decision. Again, the decision will survive intact. 40 The only power which it might be argued could affect the efficacy of the decision is to be found in s 113(1)(b)(iii). The ambit of this provision is far from clear. In Holdaway v Qantas (1992) EOC 92 - 430, 79042, the Tribunal held that the provision included the power to order reinstatement in an employment discrimination case. However, it moulded its order to fit the circumstances of the evidence. The Tribunal also noted the obiter remarks of Lee J in Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 at 69 that the provision gave the Tribunal the discretionary powers to order reinstatement. Without assaying the correctness of these decisions it is nonetheless clear that reinstatement would still leave the original decision intact. The order would be made in aid of seeking to 'redress any loss or damage suffered by the complainant' as a result of the unlawful discrimination. 41 Such an order would not involve any 'review' of a decision within s 155(1) of the Casino Control Act. In the present case, of course, such an order does not arise because the complainant was never employed by the Casino Authority so there is no employment to be reinstated. 42 Section 113 of the Anti-Discrimination Act simply contains no power to declare void, invalid or unlawful the original decision. Indeed, the existence of the power in s 113(1)(b)(iv) is indicative of the care that the legislature took to ensure that the Tribunal did not have such a power. 43 Accordingly, I agree with Giles JA that the appellant's complaint of unlawful discrimination does not involve the Tribunal inquiring into the correctness, validity or efficacy of the decision of the Casino Control Authority and does not involve any 'review' of the decision within s 155(1) of the Casino Control Act. I agree with the orders proposed by Giles JA. 44 I also agree with what Giles JA has said with regard to the 'confidentiality' application made by Ms Winters on behalf of the appellant. 45 GILES JA: Section 155(1) of the Casino Control Act 1992 ("the CC Act") provides that a decision of the New South Wales Casino Control Authority ("the Authority") under the CC Act "is final and not subject to appeal or review". The question in this appeal is whether s 155(1) prevents the Equal Opportunity Tribunal ("the Tribunal") from inquiring into Ms Maryanne Bignell's complaint that the Authority contravened the Anti-Discrimination Act 1977 ("the AD Act") by discriminating against her on the ground of her marital status. The Authority 46 The CC Act legalises gaming in a licensed casino (s 4) and provides for the grant of one casino licence (s 6). It establishes the Authority, with the objects (s 140) - " … to maintain and administer systems for the licensing, supervision and control of a casino, for the purpose of: (a) ensuring that the management and operation of the casino remains free from criminal influence and exploitation, and (b) ensuring that gaming in the casino is conducted honestly, and (c) promoting tourism, employment and economic development generally in the State, and (d) containing and controlling the potential of a casino to cause harm to the public interest and to individuals and families." 47 The specific functions of the Authority include (s 141(2)) - "(a) At the direction of the Minister to invite expressions of interest for the establishment and operation of casinos and applications for casino licences and to consider and determine those applications, (b) To consider and determine applications for other licences under this Act, (c) To keep under constant review all matters connected with casinos and the activities of casino operators, persons associated with casino operators, and persons who are in a position to exercise direct or indirect control over the casino operators or persons associated with casino operators, … " 48 By s 141(4), in the exercise of its functions the Authority "is not required to observe the rules of natural justice (except to the extent that it is specifically required to do so by this Act)". 49 The CC Act regulates the Authority's invitations for expressions of interest (s 9) and applications (s 10) for casino licences, and the matters to which the Authority is to have regard in considering and determining the applications (s 11). In particular, the Authority has to be satisfied that the applicant and each close associate of the applicant is a suitable person to be concerned in or associated with the management and operation of a casino (s 12(1)), and for that purpose has to consider a number of matters relating to the applicant and the close associates (s 12(2)). Each application must be investigated (s 14), further information can be required (s 15), and an application must be determined by either granting a casino licence or declining to grant a licence (s 18(1)). Conditions may be imposed (s 18(2)). By s 18(3), the Authority is "not required to give reasons for its decision on an application but may give reasons if it thinks fit". 50 The Authority's function of considering and determining applications for other licences involves the grant of licences to casino employees falling within the definition of "special employee". The complaint made by Ms Bignell arose from her application for such a licence, 51 A special employee is - " … a person who: (a) is employed or working in a casino in a managerial capacity or who is authorised to make decisions, including the exercise of his or her discretion, that regulate operations in a casino, or (b) is employed or working in a casino in any capacity relating to any of the following activities: · the conduct of gaming, · the movement of money or chips about the casino, · the exchange of money or chips to patrons in the casino, · the counting of money or chips in the casino, · the operation, maintenance, construction or repair of gaming equipment, · the supervision of any of the above activities, · casino security, · any other activity relating to operations in the casino that is prescribed for the purposes of this definition" (s 43(1)(b)). 52 A person must not exercise in or in relation to a casino any of the functions of a special employee except in accordance with the authority conferred on the person by a licence (s 44(1)), and a casino operator must not employ or use the services of a person to exercise any function of a special employee in or in relation to the casino unless the person is authorised by licence to exercise the function concerned (s 44(2)). 53 An application for licence is lodged with the Authority (s 46(1)). The Authority may, by notice in writing, require the applicant or a person who has "some association or connection with the applicant that is relevant to the application" to provide further information (s 49(1)). The Authority must refer each application for a licence to the Director of Casino Surveillance ("the Director"), an officer appointed under the CC Act with functions of the kind indicated by the title, for report and recommendation (s 50(1)). The Director must investigate and inquire into each application and report to the Authority, recommending either that the application be granted or that it be refused (s 50(2)). 54 If the Director's recommendation is that an application be refused, the Authority must notify the applicant in writing of that recommendation and allow the applicant at least fourteen days to make submissions to the Authority as to why the application should not be refused (s 50(3)). Then by s 52 of the CC Act - "(1) The Authority is to consider an application for a licence and is to take into account the report and recommendation of the Director and any submissions made by the applicant within the time allowed. (2) The Authority is not to grant a licence unless satisfied that the applicant is a suitable person to exercise the functions that the proposed licence will authorise the person to exercise. (3) For that purpose, the Authority is to make an assessment of: (a) the integrity, responsibility, personal background and financial stability of the applicant, and (b) the general reputation of the applicant having regard to character, honesty and integrity, and (c) the suitability of the applicant to perform the type of work proposed to be performed by the applicant as a licensee. (4) The Authority is to determine the application by either granting a licence to the applicant or declining to grant a licence, and is to notify the applicant in writing of its decision. (5) The Authority is not required to give reasons for its decision but may give reasons if it thinks fit." 55 A provisional licence may be granted (s 54), and a licence can be cancelled or surrendered and comes to an end when the employment it authorises is terminated or after 12 months (s 55). A licence can be renewed on application made and dealt with in the same way as an initial application (s 56). 56 Specifically, the Authority may take "disciplinary action" against the holder of a licence, including if it is for any reason of the opinion that the licensee is not a suitable person to be the holder of the licence (s 59). Disciplinary action involves first a report from the Director (s 59(2)), then a notice to show cause (s 59(3)), then receipt of the licensee's submissions (s 59(4)), and then the Authority's decision upon disciplinary action. The CC Act does not specifically say whether or not the Authority is required to give reasons for the decision. 57 The Authority is given wide powers in its function of constant review of casino matters. They include the taking of "disciplinary action" against the holder of a casino licence, such action including the cancellation or suspension of the licence (s 23(1)). The grounds for disciplinary action are broad, including that the licence should not have been granted, that the casino operator or its agent or employee has contravened the CC Act or a condition of the licence, that the licensee is "considered to be no longer a suitable person to give effect to the licence and this Act", and that it is "considered to be no longer in the public interest that the licence should remain in force" (s 23(1)). The Authority must give notice to show cause (s 23(2)), then receive the licensee's submissions (s 23(3)), and then decide upon disciplinary action (s 23(4)). It may direct rectification action in lieu of disciplinary action (s 24). The CC Act does not specifically say whether or not the Authority is required to give reasons for the decision. 58 Also in relation to the function of constant review, the Authority is empowered to give a casino operator a written direction as to the conduct, supervision or control of operations in the casino (s 29). It must investigate a casino from time to time (s 30), and in particular at least every three years must investigate and form an opinion as to whether the casino operator is "a suitable person to continue to give effect to the casino licence" and it is in the public interest that the casino licence should continue in force (s 31(1)). The Authority must "report its findings and opinion to the Minister, giving reasons for its opinion, and … take whatever action under this Act it considers appropriate in the light of its findings" (s 31(2)). 59 Wide powers to control the casino operator's entry into, or continuance of, contracts of various kinds in relation to the casino and its operation are given (ss 36-42). It is not necessary to go into detail, but again the CC Act does not specifically say whether or not the Authority is required to give reasons for the action it takes in the exercise of the powers. 60 There is much else in the CC Act for the Authority to concern itself with including casino layout, games and rules for games, gaming equipment, conduct of gaming, and times of operation of a casino. For the purpose of the exercise of its functions the Authority may hold inquiries, in public or in private (s 143(1)), with the power to take evidence on oath or affirmation (s 143(2)). The person presiding at an inquiry is not bound by the rules or practice of evidence and may inform himself or herself on any matter in such manner as the person considers appropriate (s 143(3)). The Authority's decision 61 Ms Bignell applied to the Authority for a special employee licence for the position of a dealer. In answer to questions and requests for information in the application form in connection with "associated persons", she named the man with whom she had been living in a de facto relationship for some years ("her partner"), describing him as "spouse", and disclosed certain criminal offences of which her partner had been convicted. 62 In July and September 1995 Ms Bignell attended two interviews with representatives of the Director, at the second accompanied by her partner. From the transcripts of the interviews, the attention of the Director's representatives was focussed on Ms Bignell's relationship with her partner and her partner's background. 63 On 15 January 1996 the Authority informed Ms Bignell by letter that the Director had recommended that her application be refused. The letter indicated that the Director considered that her relationship with her partner and his criminal history made her an unsuitable person to be granted a special employee licence. 64 On 6 February 1996 Ms Bignell and her solicitor made submissions to the Authority as to why the application should not be refused. 65 On 29 February 1996 the Authority notified Ms Bignell that it had decided not to grant the licence. Its letter of that date read - "I refer to your application for a special employee licence under the Casino Control Act 1992. The Authority has considered your application and, in so doing, has taken into account the report and recommendation of the Director of Casino Surveillance, who conducted an investigation into your application, and the submissions which you and your representative, Mr Neal made to the Authority on 6 February 1996. I advise that the Authority has, pursuant to section 52 of the Casino Control Act 1992, determined your application and decided not to grant you a licence." 66 It was common ground that the Authority's decision was "a decision under this Act" within the meaning of s 155(1) of the CC Act. The complaint of discrimination 67 On 31 January 1996 Ms Bignell lodged a complaint with the President of the Anti-Discrimination Board. She said that her application to the Authority for a special employee licence had been refused "due to what I feel may be Marital Status Discrimination", and that she felt that the Authority had "determined my integrity and personal background from their investigations into my de facto partner's personal background". 68 The complaint preceded the Authority's decision not to grant the licence, and must have been amplified after that decision to take account of it. In a letter to the Authority dated 17 December 1996, the President said that Ms Bignell alleged that the Authority discriminated against her on the ground of marital status when it refused to grant her application for a special employee licence because of her relationship with her partner. The details of the complaint then given concluded - "… she states that in refusing her application the Authority has imputed that it is a characteristic of her de facto relationship with [her partner] that she could be subject to suggestions or requests from him that she carry out illegal activities in relation to any position she may have held in the Casino. In doing so, she alleges the Authority has discriminated against her on the ground of marital status." 69 The President said in this letter that the complaint appeared to fall under ss 39 and 44 or ss 39 and 47 of the AD Act. Section 39 is the description of what constitutes discrimination on the ground of marital status. Section 44 relevantly provides that it is unlawful for a body which is empowered to confer an authorisation or a qualification that is needed for the engaging in of an occupation to discriminate against a person on the ground of marital status by refusing to confer the authorisation or qualification. Section 47 relevantly provides that it is unlawful for a person who provides services to discriminate against a person on the ground of marital status by refusing to provide the person with those services. 70 The President said that he needed the Authority's "side of the story", and asked for answers to specific questions, for a reply to each of Ms Bignell's allegations in the details of the complaint, and for any other information which the Authority thought might help in his investigation of the complaint. 71 On 21 March 1997 the Chief Executive of the Authority wrote to the President - "I refer to previous correspondence in respect of the above matter and advise that the Authority has now received the Crown Solicitor's advice on the matter. The Crown Solicitor has advised that section 155 of the Casino Control Act 1992 prevents the Anti-Discrimination Board and the Equal Opportunity Tribunal from reviewing, or hearing an appeal against, a decision of the Authority under the Casino Control Act. As there is no claim that the decision of the Authority to refuse Ms Bignell's application for a special employee licence is other than a decision made by the Authority under the Casino Control Act, section 155 of the Casino Control Act would prevent a review of, or an appeal against, that decision by or to the Anti-Discrimination Board or the Equal Opportunity Tribunal. Nevertheless, I would be happy to meet with you to discuss the operations of the Authority in connection with licensing matters, such as the one in question, and relevant statutory provisions which impact upon those operations." 72 A letter to the President dated 27 May 1997 written on Ms Bignell's behalf took issue with the advice said to have been received from the Crown Solicitor, contending that the power to investigate or inquire into complaints lodged under the AD Act did not involve an appeal or a review of the Authority's decision. The letter requested that the complaint be immediately referred to the Tribunal, saying that it was "clear that this matter is not likely to be resolved by conciliation". 73 By s 94(1) of the AD Act, the President was required to refer a complaint to the Tribunal inter alia if he was of the opinion that it could not be resolved by conciliation or if he was of the opinion that the nature of the complaint was such that it should be referred to the Tribunal. On 28 May 1997 the President referred the complaint to the Tribunal. The rulings below 74 By s 96 of the AD Act, the Tribunal was required to hold an inquiry into the complaint. At a directions hearing on 24 July 1997 the parties to the inquiry, that is, Ms Bignell and the Authority, asked that the Tribunal rule in the first instance on the Authority's contention that the Tribunal "had no jurisdiction to hear the matter". The Tribunal agreed to do so. 75 On 1 August 1997 the Tribunal received submissions in relation to its jurisdiction. For the purposes of the ruling the Tribunal was constituted by a judicial member. Noone suggested in this appeal that the Tribunal could not be so constituted for the purposes of the ruling. 76 In reasons published on 15 September 1997 the Tribunal ruled that it "has jurisdiction to hear Ms Bignell's complaint". In brief, the Tribunal considered that "review" as used in s 155(1) of the CC Act referred only to judicial review of administrative action. 77 By a summons filed in the Administrative Law Division on 2 October 1997 the Authority appealed to the Supreme Court. It seems to have been common ground that the appeal was to a single judge rather than to the Court of Appeal because the Tribunal, as constituted, was not a "specified tribunal" within the meaning of s 48(1)(a) of the Supreme Court Act 1970. The Authority joined Ms Bignell and the Tribunal as respondents to the appeal. The Tribunal entered an appearance submitting to the orders of the Court save as to costs, so the protagonists were the Authority and Ms Bignell. The appeal was limited to a question of law (AD Act s 118), and the Authority may have inappropriately claimed relief by way of declarations and an order in the nature of prohibition. 78 The appeal was heard by Black AJ on 6 and 7 May 1998. In reasons published on 22 May 1998 his Honour upheld the appeal, set aside the Tribunal's decision that it had jurisdiction to hear Ms Bignell's complaint, and made declarations that the Tribunal had no jurisdiction to entertain the complaint and that it ought to have dismissed the complaint on the ground that it did not have jurisdiction to entertain it. Again in brief, his Honour considered that "review" in s 155(1) of the CC Act included an examination of a decision by an entity which had power to make legally enforceable orders against one or more of the parties to the decision in the light of that examination, and that the Tribunal's inquiry would be such an examination. This appeal 79 By a notice of appeal filed on 4 June 1998 Ms Bignell appealed from the decision of Black AJ. As before, the Tribunal was a respondent to the appeal but entered an appearance submitting to the orders of the Court save as to costs. The protagonists were again Ms Bignell and the Authority. 80 If the appeal to a single judge in the Administrative Law Division was properly brought, the appeal to this Court required leave, see s 102(2)(h) of the Supreme Court Act as it then stood. The appeal may also have required leave by force of s 102(2)(r) of the Supreme Court Act, and there was no affidavit in accordance with Pt 51 r 8 stating facts showing that the monetary restriction did not apply. While drawing attention to a possible requirement of leave to appeal, however, the Authority did not oppose the hearing of the appeal, and it expressly made no submission against the grant of leave. The appeal involves matters of some general importance and in my opinion if leave be necessary it should be granted. The meaning of "review" 81 Section 155(1) of the CC Act should be seen as part of s 155 as a whole. 82 Section 155 provides - "(1) Except as otherwise provided in this section, a decision of the Authority under this Act is final and is not subject to appeal or review. (2) A person aggrieved by a decision of the Authority to cancel or suspend a casino licence or to amend the conditions of a casino licence may appeal from the decision to the Supreme Court on a question of law. (3) The Supreme Court is to hear and determine the appeal and make such order as it thinks appropriate by reason of its decision, including, without limiting the Court's power to make such orders: (a) an order affirming or setting aside the decision of the Authority; and (b) an order remitting the matter to the Authority to decide again in accordance with the directions of the Court. (4) Proceedings for an appeal in respect of a decision of the Authority do not operate to stay the decision appealed from unless the Supreme Court otherwise orders." 83 An appeal is a creature of statute. Unless a right of appeal is given by statute, the decision of a body such as the Authority is not subject to appeal: see for example Attorney-General v Sillem (1864) 10 HLC 704, Furtado v City of London Brewery Company (1914) 1 KB 709 at 712, Marriott v Minister of Health (1936) 154 LT 47; R v Medical Appeal Tribunal, ex parte Gilmore (1957) 1 QB 574 at 587; Lisafa Holdings Pty Ltd v Gaming Tribunal (No 3) (1992) 26 NSWLR 391 at 396; Connell v R (1993) 70 WAR 424 at 432. The CC Act gives no general right of appeal in relation to decisions of the Authority, and it was not suggested that a right of appeal was to be found in some source outside the CC Act. So far as s 155(1) provides that a decision of the Authority is final and not subject to appeal, therefore, it and the qualifying "Except as provided by this Act … " must be regarded as an unnecessary counterpoint to the limited right of appeal given by s 155(2). 84 At common law the superior courts have an inherent jurisdiction to review the decisions of inferior courts and administrative bodies, a jurisdiction to be distinguished from an appellate jurisdiction. The jurisdiction is commonly referred to as that of judicial review. It was formerly exercised principally through the so-called prerogative writs of certiorari, prohibition and mandamus, by which the court intervened to ensure that the inferior court or administrative body did not wrongly decline to exercise its jurisdiction, exceed its jurisdiction, or, speaking broadly, err in law in the exercise of its jurisdiction (including by denying procedural fairness to those to whom it should have been provided). The jurisdiction of this Court is now by proceedings for the relief or remedy formerly available (see Supreme Court Act s 69). The critical feature of this judicial review, for present purposes, is that when the court finds that a ground of review has been made out it nullifies any impugned decision and leaves it for the original decision maker to make a decision afresh (see for example Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40-41 per Mason J). 85 The inherent jurisdiction to review can be taken away by statute. So far as s 155(1) provides that a decision of the Authority is final and not subject to review, at the least it will exclude judicial review of this kind; see Darling Casino Ltd v New South Wales Casino Control Authority (CA, 8 November 1986, unreported, decision upheld but on different grounds Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602). Its effect will be as described by Gaudron and Gummow JJ in Darling Casino Ltd v New South Wales Casino Control Authority in the High Court (at 630-31), referring to R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 - "In that case, Dixon J said that the effect of privative clauses, which purport to exclude judicial review entirely, is that decisions are not 'considered invalid if they do not upon their face exceed the … authority [conferred by the legislation in question] and if they do amount to a bona fide attempt to exercise the powers [conferred] and relate to the subject matter of the [legislation]'. A little later, he explained that such clauses 'have a protective operation upon the action of [decision-makers] acting irregularly or outside their formal authority'. So far as concerns impugned exercises of power, the Hickman principle allows the privative clause to operate in the fashion identified by Brennan J in Deputy Commissioner of Taxation v Richard Walter Pty Ltd : 'The privative clause treats an impugned act as if it were valid. In so far as the privative clause withdraws jurisdiction to challenge a purported exercise of power by the repository, the validity of acts done by the repository is expanded'. However, a privative clause will sometimes, although, perhaps not often, protect against a refusal or failure to exercise power. In that situation, it treats the refusal or failure as if there were no obligation to exercise the power in question. And by withdrawing the jurisdiction of the courts to review, it operates to reduce the scope of the decision-maker's duty. In both situations, the privative clause operates, in effect, to recast the legislative provisions which confer the power in question and which condition its exercise." 86 The precise extent of the exclusion by s 155(1) of the inherent jurisdiction to review is a matter of construction of the CC Act. It need not be addressed in this case, because it was common ground that, even if it excluded judicial review of this kind entirely, s 155(1) would not preclude the Tribunal from inquiring into Ms Bignell's complaint. The Tribunal would not be concerned with jurisdictional error or error of law in the exercise of its jurisdiction on the part of the Authority whereby the Authority's decision should be nullified. 87 However, there are other kinds of review, and other senses in which "review" might have been used in s 155(1). The inherent jurisdiction to review may be supplemented by a statutory jurisdiction, of which the most prominent in Australia has been the jurisdiction of the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (C'th) ("the ADJR Act"). Review under the ADJR Act is not available in respect of a decision of the Authority, but it illustrates another kind of review to which s 155(1) might apply. 88 Under the ADJR Act application may be made for an order of review in respect of a decision or in respect of conduct engaged, being engaged, or to be engaged in for the purpose of making a decision (s 5). Grounds on which an order for review may be made are set out, broadly equivalent to the grounds on which judicial review would be available at common law (s 6). The court may make one or more of a number of orders (s 16). In respect of a decision, it may quash or set aside the decision, refer the matter to the decision-maker for further consideration, declare the rights of the parties in respect of any matter to which the decision relates, or direct any of the parties to do, or refrain from doing, anything the court considers necessary to do justice between the parties. In respect of conduct for the purpose of making a decision, it may declare the rights of the parties in respect of any matter to which the conduct relates. In respect of failure to make a decision, it may direct the making of the decision, declare the rights of the parties in respect of any matter to which the decision relates, or direct any of the parties to do, or refrain from doing, anything the court considers necessary to do justice between the parties. 89 In this State the Administrative Decisions Tribunal Act 1997 ("the ADT Act") created a tribunal with a statutory jurisdiction to review decisions made by administrators where an enactment provides for such review. No enactment provides for review of decisions of the Authority, but again this illustrates a kind of review to which s 155(1) might apply. The ADT Act is complex, but on an application for review the tribunal is to "decide what the correct and preferable decision is having regard to the material then before it" (s 63(1)), exercising all the functions conferred or imposed by any relevant enactment on the administrator who made the decision (s 63(2)). The tribunal may affirm the reviewable decision, vary it, or set it aside and remit the matter for reconsideration by the administrator in accordance with its directions or recommendations (s 63(3)). 90 These illustrations make it plain, in my view, that "review" in s 155(1) can go beyond the exercise of the inherent jurisdiction to review. There can be review of a decision otherwise than in the exercise of that jurisdiction. 91 As was said by Toohey J in Bannister v See (1982) 42 ALR 78 at 81 - "The term 'review' is not one of precision. It may, as in the notion of judicial review of administrative action, subject an administrative decision to scrutiny by a court on a variety of grounds including error of law, excess of power and breach of the rules of natural justice. That is the sense in which it is used in the Administrative Decisions (Judicial Review) Act itself. It may have the more limited meaning of reconsideration in the light of changed circumstances, as with workers' compensation payments …" 92 In that case it was held that the review by the Supreme Court of Western Australia of a magistrate's decision to execute two warrants for apprehension was, in his Honour's words (at 322), "in the fullest sense a rehearing", with power to confirm or vary the order or quash the order and substitute a new order in its stead; it was not "a review by way of the making of an order of the same or similar nature as or of the same or similar effect to a prerogative or statutory writ". 93 In a number of cases concerned with s 9 of the ADJR Act a wider meaning of "review" of a decision has been considered. Section 9 provides that a court of a state "does not have jurisdiction to review" decisions or conduct to which the Act applies, defining "review" to mean review by way of the grant of an injunction, the grant of a prerogative or statutory writ or the making of any order of the same or similar to nature or having the same or similar nature as any such writ, or the making of a declaratory order. The cases demonstrate that the decision of an administrative body may be impugned in ordinary proceedings in which the plaintiff claims declaratory or injunctive relief, and that there may be "review" of a decision where the proceedings are not for the relief or remedy formerly available through the prerogative writs or available under legislation such as the ADJR Act. 94 In Appliance Holdings Pty Ltd v Lawson (1983) 1 NSWLR 246 the plaintiff claimed relief in the nature of an injunction requiring the return of goods seized by the police under search warrants and an order in the nature of certiorari in relation to the decision to issue the search warrants. The police submitted that the court had no jurisdiction to grant the relief claimed because s 9 of the ADJR Act applied to both the decision to issue the search warrants and the conduct of the police acting under them. The decision was held to have been a judicial act or reached in the performance of a judicial function, and not of an administrative character; so it did not fall within s 9. But it was held that injunctive relief could not be granted in relation to the conduct of the police acting under the search warrants, because that would involve reviewing the conduct. Waddell J said (at 249-50) - "It is submitted for the plaintiffs that some qualification is to be found in the use of the word 'review'. In its ordinary or dictionary meaning the word review would certainly extend to any process of examining the correctness of a decision or of any conduct. It seems to me that what is involved in these proceedings is an examination of the correctness of the conduct of the first two defendants. The word review is extensively used in various legal contexts. I do not think that any of these provide any restriction of its ordinary meaning. Accordingly, it seems to me that this word does not lead to any qualification to the apparent width of the provision in question. Nor do I think that the context in which the word is found provides any restriction in its meaning. As appears from the provisions of the section quoted above the word 'review' in the section is defined as meaning, amongst other things, review by way of the grant of an injunction. I do not think that this means that it is only the grant of an injunction which is to be considered as review. I think the expression is broad enough to extend to a consideration of the correctness of conduct as well as to the grant of an injunction. The language used is consistent with that used in s 5, s 6 and s 7, each of which speaks of an order of review. Each of these sections, undoubtedly, authorises an examination of the correctness of a decision or of conduct not dissimilar in nature to that which this Court would have to make in order to grant interlocutory relief." 95 Of present significance, his Honour contemplated that "review" extended to "any process of examining the correctness of a decision or of any conduct". It should be noted, however, that the correctness or otherwise of the decision or conduct was regarded as fundamental to the grant of the relief claimed, being relief within the definition of "review" in the ADJR Act. 96 In Nomad Industries of Australia Pty Ltd v Commissioner of Taxation (1983) 2 NSWLR 56 the plaintiff claimed a declaration that certain goods fell within one or other of two exempt items for sales tax purposes. The Commissioner contended that he had issued a decision to the contrary, and opposed the making of a declaration on the ground that it involved "review" of his conduct in making the decision and the court's jurisdiction was excluded by s 9. It was held that there had not been a decision within the meaning of the ADJR Act, and that if there were conduct of the Commissioner within the meaning of the Act the proceedings did not review that conduct. Rogers J said (at 63-4) - "In my view it is entirely inapposite to say that the declarations sought in the present case constitute a "review" of conduct engaged in by a Commonwealth officer. Whilst I accept that the word is one of wide meaning, as suggested by Waddell J, and normally extends to 'any process of examining the correctness of a decision or of any conduct', it seems to me to be a misuse of language to say that a declaration as to the application of a statutory provision is a "review" of the conduct of a particular person. The foregoing in essence represents a restatement of the view which I expressed earlier in the year in Clyne v Deputy Federal Commissioner of Taxation [1983] 1 NSWLR 110; (1983) 83 ATC 4001. What the summons seeks is a statement from the court by way of declaration as to the existence or otherwise of a liability imposed by the law. As I have sought to show, no decision of the Commissioner, no conduct of the Commissioner, have anything to say, any role to play, in the answer to be returned to that question. The liability will neither be greater nor smaller, will neither arise nor be extinguished, the time at which liability arises is not fixed, and it is in no wise affected by anything which the Commissioner may do or omit to do. Thus to enunciate judicially by means of a declaratory order that there is no liability does not, in my view, constitute a 'review' of any relevant matter." 97 While there was acceptance that "review" could extend to process of examination of the correctness of a decision or conduct, that was only when the validity or effectiveness of the decision or conduct affected the grant of the relief. The fact that the Commissioner had decided one way was irrelevant to the court's decision. 98 In Powell v Manufacturer's Mutual Insurance Ltd (1983) 3 NSWLR 183 the plaintiff claimed an injunction restraining the defendant from paying to the Director-General of Social Services (as he then was) an amount of sickness benefits recoverable under the Social Services Act 1947 (C'th). The Director-General had issued a notice requiring payment of the amount, and the plaintiff wished to have his decision reconsidered by processes available under the Act. It was held that the court had no jurisdiction to grant an injunction because (at 188) - "The court would be saying, in effect, that, although one of the aspects of the second defendant's decision is that the first defendant is immediately liable to pay a sum of money to the second defendant, that aspect will be reviewed, revised, or made ineffective by the order of this Court. Such an order would be outside the prohibition in s 9 of the Act only if 'review' in that section did not embrace the revision or alteration of some aspect of the decision. To say, of a decision that a person is immediately liable to pay an amount of money to another, that that payment should not be made until further order of the court, is, in my opinion, to review the decision. The fact that it is not a complete review on the facts and the law does not seem to me to be conclusive of the question." 99 Again, the court would be determining whether the impugned decision was valid or effective. 100 Rosenthal v Phillips (1985) VR 409 was another search warrant case. The plaintiff claimed a declaration that the search warrants were not authorised by the provision under which they had purportedly been issued, relief which would have the effect that the seized goods were returned, and damages for trespass. It was submitted that the court had no jurisdiction to grant the relief because of s 9 of the ADJR Act. 101 After reference to Appliance Holdings Pty Ltd v Lawson and Nomad Industries of Australia Pty Ltd v Commissioner of Taxation, Marks J said that he was unable to agree that the "extended meaning" given by Waddell J and Rogers J to "review" could be justified. His Honour said that the word was defined in s 9(2) of the ADJR Act, that it was used in different senses in other parts of that Act (for example in s 10(1) where the jurisdiction of other courts to review the conduct and decisions of officers of the Commonwealth was preserved), and so that the powers removed from the State courts were only those specified in the definition of "review" in s 9(2). There was jurisdiction to entertain the claim for damages for trespass, even though it depended on establishing that the conduct of the police was unlawful, and to make the declarations concerning the return of the materials, although there was no jurisdiction to declare that the search warrants were not authorised because such a declaration fell within the exclusion. His Honour said (at 415) - "In my opinion, s 9 of the Act excludes jurisdiction in State courts to make the designated decisions and conduct the subject of the orders and prerogative writs specified in the definition of 'review' in sub-s (2). It does not, nor purport to, reach decisions on issues or conduct of like description which may lead to but not be the direct subject of relief of a different description." 102 This case took a more restricted view of "review", emphasising the link with the relief claimed. It still required that the court determine the validity or effectiveness of the decision to issue the search warrants. 103 The exclusion of review in s 9 of the ADJR Act arose again in Delmore Pty Ltd v Commonwealth of Australia (1985) 2 NSWLR 179. It was held that the court's jurisdiction in the proceedings had not been excluded. 104 The plaintiff conducted a private hospital. It had received from the Department of Health letters questioning its entitlement to payments under s 33 of the Health Insurance Act 1973 (Cth). It claimed a declaration to the effect that it had been entitled to what it had received. The Commonwealth submitted that the court had no jurisdiction to determine the claim, because the letters contained decisions which would necessarily be the subject of review in the proceedings. It argued that the review lay in the court's determination whether the views expressed in the letters, so far as they concerned the application of s 33 of the Health Insurance Act to the plaintiff's special day care patient programme, were wrong. 105 McLelland J said (at 185-6) - "In my opinion these submissions cannot be sustained. There is a clear distinction between a review of a decision on the one hand, and a determination of the correctness or otherwise of a question which has been the subject of a decision, on the other. In the first class of case, what is under examination is the act of the decision-maker. The examination may be directed to the correctness of the matter decided, or it may be directed to the validity of the process by which the decision was made, regardless of the correctness of the matter decided. However, in the second class of case, what is under examination is a question (whether of fact, of law, or of combined fact and law) which may be independent of any act of a decision-maker, notwithstanding that an act of a decision-maker may have given rise to the occasion for such consideration, or that the same question may have been involved in the act of the decision-maker. The two classes of cases are not mutually exclusive: they are intersecting classes, but no case which does not fall within the first class is caught by the terms of the Judicial Review Act, s 9. In other words, if the invalidity or impropriety of the act of the decision-maker, as such, is not a necessary element in the claim for relief, s 9 does not operate to exclude the jurisdiction of a State court. In the present case the validity or propriety of such acts of officers of the Department of Health as are reflected in the November letters are, as such, irrelevant to the substantive issues in the proceedings. The only substantive matter in issue is whether in the circumstances proved in evidence the Commonwealth was liable to make payments to the plaintiff under the Health Insurance Act (Cth), s 33. This issue is to be resolved simply by applying the terms of that Act to the facts as found, and not by any examination of acts of any decision-maker within the Department of Health. To return to the two intersecting classes of cases referred to above, I would not wish the views I have so far expressed to be understood as implying that any case which falls within the first class (ie where the invalidity or impropriety of the act of the decision-maker is a necessary element in the claim for relief) is necessarily caught by s 9. In my opinion not every such case would be so caught. This follows from the restricted meaning given to the expression 'review' by the definition in s 9(2). A court could not in my opinion properly be said to 'review' a decision 'by way of' one of the three stipulated kinds of remedy (bearing in mind their nature) unless the act of the decision-maker, as such, is the subject of, or directly impugned by, that remedy. It is however unnecessary for the purposes of the present case to deal with this aspect of the operation of the section further." 106 Appliance Holdings Pty Ltd v Lawson and Nomad Industries of Australia Pty Ltd v Commissioner of Taxation were amongst the cases cited in argument. Rosenthal v Phillips was not cited in argument. No cases were cited in the judgment. His Honour's approach to the meaning of "review" certainly does not give it wider scope than did Waddell J and Rogers J, and he also saw significance in a s 9 case in the statutory definition: even if there were review in that the act of the decision-maker was under examination (as to correctness or the validity of the process by which the decision was made), there might not be review for the purposes of s 9. Challenge to the validity or effectiveness of the impugned decision, however, was essential; it was not enough that the court determined a question the subject of the decision. 107 In Aerolineas Argentinas v Federal Airports Corporation (1993) 32 NSWLR 595 the defendant had determined to levy charges on aircraft landing at airports it operated, purportedly pursuant to s 56 of the Federal Airports Corporation Act 1986 (Cth). The plaintiffs contended that the levy was invalid, and claimed repayment of a substantial sum as money had and received. The defendant submitted that the court had no jurisdiction because the claim involved review of a decision contrary to s 9 of the ADJR Act. It was held that the defendant's determination was a decision of an administrative character to which the ADJR Act applied, that the plaintiffs' claim necessarily involved review by way of the relief listed in s 9(2), and so that the court did not have jurisdiction. 108 The defendant argued that, unless and until its determination was quashed or declared invalid, it could not be held that the money paid to it should be repaid as money had and received. The plaintiffs argued that any examination of the defendant's determination would be incidental to its claim, and that although the invalidity of the determination might be a step in the court's reasoning it was not necessary that an order falling within s 9(2) should be made. Ireland J accepted that a formal order to the effect that the defendant's determination should be quashed or was invalid would not be needed, but considered that there would nonetheless be review by way of relief referred to in s 9(2). He said (at 616) - "To my mind, the effect and essential nature of the proceedings, not only in relation to the relief sought, but also in relation to the very process of the proceedings, will be of relevance in determining whether the jurisdiction of the State court is excluded on the basis that they constitute review 'by way of' one of the proscribed remedies. Further, while a declaration may not in terms be sought by the plaintiffs in the instant case, it should not be ignored that any judgment received in the plaintiffs' favour may well have the effect of an estoppel in relation to any charges under the determination which the Corporation may wish to recover in the future, and therefore act both retrospectively and prospectively as if it were a declaration. In the final analysis, while in my view the plaintiffs have persuaded me that it would not be necessary to quash the determination, or to make a declaration that the determination by the Corporation is invalid, it appears to me that the plaintiffs have considerably more difficulty in relation to the matters raised by McLelland J in Delmore, in relation to his Honour's observations that it is only 'if the invalidity or impropriety of the act of the decision-maker ... is not a necessary element in the claim for relief' that the jurisdiction of the State court is not excluded. In this respect, I agree with the submissions of the defendant to the effect that the plaintiffs cannot recover their money unless the determination is said to be invalid. In this respect, in my opinion, the relief sought by the plaintiffs, although in its amended form to be expressed as a claim for money had and received, will effectually involve the matters referred to by McLelland J in Delmore . To hold the defendant liable to repay the moneys already received would effectively be to declare the charge invalid, and that the amounts paid by the airlines were not (and, by implication, are not) payable to the defendant. This would amount to a declaration in the same terms as those now to be deleted from the statement of claim." 109 Putting aside whether it was sufficient that the claim "amounted to" relief within s 9(2), his Honour adopted from Delmore Pty Ltd v Commonwealth of Australia the approach of whether it was necessary to hold that there was invalidity or impropriety in the act of the decision-maker, going to the effectiveness of the decision itself. 110 There is not complete uniformity in these cases. I do not think it necessary to attempt a statement of what is involved in reviewing a decision or conduct when s 9 of the ADJR Act is in question. The description earlier adopted of an examination of the correctness of the decision or the conduct of the decision-maker is, with respect, unsatisfactory, in that it must be asked, correctness in what way? Whatever is otherwise involved, examining the correctness of a decision must address its validity or effectiveness, and examining the conduct of the decision-maker must look to the process by which the decision was made as something affecting the validity or effectiveness of the decision. The cases on s 9 do not support, indeed are against, a meaning of "review" extending to any consideration of a decision or the manner in which a decision was made. 111 Other cases illustrate further meanings which can be given to "review". In Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 an employee compulsorily retired pursuant to s 56 of the Telecommunications Act 1975 (Cth) was entitled under the Act to "review" of the decision to retire him. Regulations were made to give effect to this, limiting the review tribunal to making recommendations to the original decision maker. A review tribunal declined to recommend a different decision. The plaintiff applied under ADJR Act in relation to the original decision and the decision of the tribunal. It was held that the tribunal had failed appropriately to review the original decision, inter alia because it had considered only whether it should make a recommendation to the original decision-maker. 112 The judgment of Burchett J contains (at 62-3) a collection of instances of "review", and his Honour held that review called for more than recommendation and for reconsideration by the tribunal - "The sections, in imperative terms, require that the regulations shall provide for the review of a decision of the Commissioner under each section; they do not provide for review by the Commission, but for review of its decision. An 'appeal from Caesar to Caesar' is the proverbial paradigm of an empty formality offering no real hope. The Act, which was passed in 1975, would be out of step with numerous contemporary provisions if, in requiring a review, it contemplated merely further consideration by the Commission itself upon receipt of 'recommendation and advice' only from an independent tribunal, It is perhaps sufficient to refer to general legislation such as the Administrative Appeals Tribunal Act 1975 (Cth) and the Administrative Decisions (Judicial Review) Act 1977, both of which use the word 'review' in a sense involving the independent exercise of powers directly affecting the decision reviewed. Section 6 of the Ombudsman Act 1976 (Cth) uses 'review' with reference to a court or tribunal, though also by extension in a looser sense, while the Ombudsman's own action, which has no binding effect, though it may lead to a referral 'to the appropriate authority for further consideration' or a 'report' and 'recommendations' (s 15), is not called a review, but an 'investigation'. In respect of the Administrative Appeals Tribunal, there is exceptional provision for a 'review' without binding effect. But this is an exception which confirms the general rule, excluding from it the special case of a decision, concerning immigration, of a kind traditionally the preserve of the responsible Minister (cf Minister for Immigration and Ethnic Affairs v Pochi (1981) 149 CLR 139 at 143). A similar usage is to be found in various pieces of legislation having more restricted areas of operation for example, the provisions of Pt V of the Income Tax Assessment Act 1936 (Cth) in respect of boards of review, the provisions dealt with in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 368; and Harrington v Harrington (1981) 55 ALJR 566 at 567; and most significantly, s 64 of the very Act under consideration, Telecommunications Act 1975, which provides for a 'review' of certain decisions of officers and boards by the Commission itself, with power to alter the results of the original decision. Neither a further consideration by the Commissioner, for which reg 35 provides, nor a hearing by a tribunal without power to reverse or even modify the original decision, for which it also provides, can adequately answer the statutory requirement of a 'review'. Together, I think they remain impotent to do so. In the Shorter Oxford English Dictionary the first meaning given of the word 'review' is 'the act of looking over something (again), with a view to correction or improvement', but the meaning in law is also given: 'Revision of a sentence, etc, by some other court or authority'. It is the latter meaning, suggesting an independent tribunal with power to alter the result, which is significant. In Ashfield Municipal Council v Joyce [1978] AC 122 at 134 Lord Wilberforce said, citing Pemsel's case (1891) AC 531: 'It is hardly necessary to add to this the reminder, from Lord Macnaghten, that "in construing Acts of Parliament, it is a general rule … that words must be taken in their legal sense unless a contrary intention appears".' (see also Pearce, Statutory Interpretation in Australia (2nd ed), par 44). That the Shorter Oxford English Dictionary correctly defines the legal meaning of 'review' is confirmed by the cases: see Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 620 citing Phillips v Commonwealth (1964) 110 CLR 347 at 350, where the High Court chose the word 'review' to describe a rehearing which led to the pronouncement anew of the rights of the parties; R v Nat Bell Liquors Limited (1922) 2 AC 128 at 143 where Lord Sumner also chose the same word to express the breadth of the remedy conferred by a power of rehearing in contrast to the limited reach of certiorari; and Council of Civil Service Unions v Minister for the Civil Service (1985) 1 AC 374 at 408 where Lord Diplock said: 'Judicial review … provides the means by which judicial control of administrative action is exercised' (emphasis added). Use of the word in this context is discussed in Woss v Jacobsen (1985) 60 ALR 313." 113 On appeal (Australian Telecommunications Commission v Colpitts (1986) 12 FCR 395) it was held that the fact that the tribunal could do no more than recommend what in its opinion should be done did not mean that there was not a review within the meaning of the Act. A review was contrasted with an appeal, and it was said that in the context of the Act it was not necessary that the Tribunal confirm or set aside the original decision or substitute its own decision, and that there was a review if the matter was looked at afresh by the tribunal (see per Toohey J at 404, Fisher J concurring; per Jackson J at 412). 114 In Re Brindle; Ex parte F B & F A McMahon Pty Ltd (1992) 35 FCR 506 the Bankruptcy Act 1966 (Cth) provided for review of a Registrar's decision. Could the court could consider evidence of matters occurring after the Registrar's decision? Hill J said (at 509) - "The Shorter Oxford English Dictionary defines 'review' as: 'The act of looking over something (again), with a view to correction or improvement' … Law. Revision of a sentence, etc, by some other court or authority.' The latter, as Burchett J observed in Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52, correctly conveys the legal meaning. The Macquarie Dictionary gives the legal meaning as: 'judicial re-examination, as by a higher court, of the decision or proceeding in a case'. The expression 'review' is commonly used in the context of judicial control of administrative action: see Council of Civil Service Unions v Minister for the Civil Service (1985) AC 374 at 408, per Lord Diplock. It is also used in the context of full administrative review of administrative decision-making by an administrative tribunal. Thus, s 187 of the Income Tax Assessment Act 1936 (Cth), prior to its amendment conferring jurisdiction upon the Administrative Appeals Tribunal, gave a taxpayer, dissatisfied with the decision of the Commissioner of Taxation upon his objection, a choice whether to refer that decision to a Taxation Board of Review for review , or to treat his objection as an appeal and to forward it to a State Supreme Court. If the former course were taken, the Board looked at the matter afresh, and, as a result of particular provisions of the then legislation (s 193), had all the powers and functions of the Commissioner. Its review was not limited to evidence before the Commissioner, but the Board stood in the shoes of the Commissioner to do again that which he had done within the limits of the taxpayer's objection: see Mobil Oil Australia Pty Ltd v Commissioner of Taxation (Cth) (1963) 113 CLR 475 at 502, per Kitto J. It thus took into account evidence between the date of the Commissioner's decision under review and the date of hearing. The Administrative Appeals Tribunal Act 1975 (Cth) provides for the Administrative Appeals Tribunal to 'review' decisions where legislation confers that right of review. In the context of that statute, the review conducted by the Tribunal of administrative decision-making operates as a rehearing, and the Tribunal is not restricted to the evidence that was before the decision-maker. Like the Taxation Boards of Review, the Administrative Appeals Tribunal stands in the shoes of the decision-maker in reviewing the decision under attack: see Commissioner of Taxation (Cth) v Jackson (1900) 90 ATC 4,900 at 5,000. By contrast, the Administrative Decisions (Judicial Review) Act 1977 (Cth) provides for an application by a person aggrieved by a decision to which that Act applies, to apply to this Court for an 'order of review' of such a decision: s 5(1). Such review is limited to considering the evidence that was before the decision-maker, or ought to have been before him. Events after the making of a decision would have no relevance, except perhaps on discretionary matters: see Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87. I do not think that in the context of the Act the power conferred upon the court to review a decision of a Registrar is properly to be equated to judicial review of administrative decision-making." 115 These cases show that "review" can mean reconsideration, and the meaning depends on the context. It may be noted that the CC Act itself contains a use of "review" with the meaning of reconsideration. The Director, the casino operator, or the person for the time being in charge of the casino may prohibit a person from entering or remaining in the casino (s 79(1)). Unless the exclusion order is given at the direction of the Commissioner of Police, the person may apply to the Authority for "a review of the order" (s 80(1)). After inquiry, the Authority may "overrule the exclusion order or allow it to stand" (s 80(5)). "Review" in s 155(1) and in this case 116 Ms Bignell's primary submission was that "review" in s 155(1) should be narrowly construed and that, as held by the Tribunal, the exclusion went no further than exclusion of judicial review of administrative action. Her fall-back position was that, even if it went further, it did not catch inquiry by the Tribunal into her complaint because the inquiry would not involve examination of the correctness of the decision. The Authority submitted that "review" in s 155(1) should be given a wide meaning, not one confined to administrative law grounds, and that the inquiry would involve examination of the correctness of the decision; in particular, it said, if the complaint were upheld it could affect the outcome of Ms Bignell's wish to obtain a special employee licence. 117 It may be accepted that, as urged by Ms Bignell, a provision such as s 155(1) should be construed "by reference to a presumption that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied" (Public Service Association (SA) v Federated Clerks' Union (1991) 173 CLR 132 at 160 per Dawson and Gaudron JJ). Ms Bignell said that it should be presumed that the legislature did not intend by s 155(1) that access to the courts otherwise than for judicial review should be taken away by a wide and indeterminate notion of review, and that the presumption should extend to access to other bodies adjudicating on the citizen's rights (see Sydney City Council v Reid (1994) 34 NSWLR 506 at 511-512). 118 But the presumption must defer to a sufficiently clear legislative intention. The word "final" and the phrase "not subject to appeal or review" might suggest that s 155(1) is concerned with the two recognised and distinct processes of appeal and judicial review, by which the validity of the Authority's decision, and so its finality, might be challenged. Nonetheless s 155(1) does not refer to judicial review, or to review by a court, and uses unqualified the word "review" which, as has been seen, can have a meaning beyond judicial review. Where s 155(4) refers to "Proceedings or an appeal in relation to a decision of the Authority … " (emphasis added), it is consistent with proceedings for judicial review or proceedings otherwise examining the correctness of the Authority's decision. 119 The parties sought to find other guides to the legislature's intention. 120 Ms Bignell drew attention to specific exclusions of, or of aspects of, judicial or other intervention in the workings of the Authority. She argued that the absence of like exclusion of the application of the AD Act indicated that its application was not within the notion of review. 121 I have already referred to provisions of the CC Act concerning giving reasons for decisions (see paras 4 and 5 above, but cf paras 12, 13 and 15). 122 Section 145 of the CC Act deals with employment of the Authority's staff, and s 145(4) gives effect to the provisions in Schedule 2 to the CC Act by which, so far as presently relevant, (i) Pt 2 of the Public Sector Management Act does not apply in respect of staff of the Authority; (ii) no appeal lies to the Government and Related Appeals Tribunal concerning a promotional or disciplinary matter affecting a member of the staff; (iii) matters to do with the employment or disciplining of staff of the Authority are stated not to be industrial matters for the purposes of the Industrial Relations Act 1991; (iv) the Authority can terminate arrangements as to seconded staff and "no appeal or other proceedings may be brought, in respect of the termination, by or on behalf of the person concerned"; and (v) after the termination no court or tribunal may make an order reinstating or have the effect of reinstating "a former member of the staff of the Authority" as a member of the staff of the Authority. 123 The CC Act when enacted inserted in the Ombudsman Act 1974, in the conduct of public authorities excluded from investigation under that Act, conduct of the Authority or any other public authority when exercising functions under the CC Act. 124 I do not think the argument carries any weight. It rests on the expressio unius principle, but the specific exclusion of the disparate matters, mostly quite different from the application of the AD Act, does not cut down the otherwise general exclusion of review or take the application of the AD Act outside that exclusion if it otherwise be within it. 125 The Authority for its part drew attention to the legislative history of the CC Act. It was enacted following an inquiry conducted by Sir Laurence Street into the establishment and operation of legal casinos for New South Wales. Sir Laurence's report recommended amendments to the then draft bill, including in relation to what was called the Authority's discretion to act. The report said - "6.2.1 I consider that there are three matters in the draft Bill which should be amended so as to strengthen the regulatory system. Two of these relate to the Authority's discretion to act, and to its accountability. It is desirable that the Authority have the confidence to exercise its powers, if necessary arbitrarily, in pursuit of its objects. It needs a wide discretion and needs to be free from the risk of legal challenges. On the other hand, this discretion should be balanced by greater accountability to Parliament. There is also an incidental aspect of the Authority's information-gathering powers which should be addressed. Limited Right of Appeal 6.2.2 The Bill includes, however, a right of appeal to the Supreme Court from a decision of the Authority on the grounds of a failure by the Authority to observe the rules of natural justice (cl 153(4)). I am of opinion that this provision should be deleted and that the Authority should be expressly released from any obligation to observe the rules of natural justice. I state this opinion in full and respectful awareness of the views expressed in the 1991 Connor Report (para 6.13). I have preferred to draw upon my own experience in assessing the restrictive and obstructive potential of a natural justice requirement. Moreover, the Victorian legislation did not adopt this particular requirement in the Connor Report. 6.2.4 The Authority needs to be free to take account of criminal intelligence and to act on material and by procedures that might well fall short of the requirements of natural justice. It has an important public duty to administer the licensing system in the public interest. Protection from criminal infiltration and activity is to the forefront of its responsibilities. It must be able to act swiftly and decisively if it considers the circumstances call for such action. The nature of its membership should be accepted as a significance assurance of fairness. To go further, as does the Bill in clause 153(4), would hamper it and be potentially detrimental to public interest. Challenges on the ground of natural justice are easy to formulate, whether the decision in question be as important for example as refusal of a licence to an entity with notorious, but not provable, criminal links, or as peripheral for example as refusing to hear a mass of evidence on whether operating times should be responsive to daylight saving changes. If the Authority is to function effectively in the public interest, appeals from its decisions should be confined to those permitted under cl 153(2), namely appeals to the Supreme Court on a question of law against decisions to cancel or suspend a casino licence or to amend the conditions of a casino licence. 6.2.5 As well as recommending the deletion of clause 153(4), I am of the view that there should be added to clause 139, the clause that prescribes the functions of the Authority, a further sub-clause to the effect that in exercising its functions the Authority shall not be bound to observe the rules of natural justice." 126 The second reading speech of the Chief Secretary and Minister for Administrative Services took up these and associated recommendations (Hansard, 5 March 1992, pp 522-3) - "Sir Laurence concluded that the public interest in open government is dominated by the public interest in the integrity of the casino industry and that the authority's objects of ensuring the casino industry remains free from criminal activity and dishonest gaming set it apart from the usual public authority. It is on the basis of Sir Laurence's findings that the authority and the division of casino surveillance are not subjected to the requirements for public access to their records. The Government believes that Sir Laurence put a compelling case for information held by these agencies to be exempt from freedom of information access. Instead, the bill grants the casino regulatory agencies a discretion to divulge information in the public interest. This approach is consistent with discretions given to the authority throughout the bill, and the limited rights of appeal from individual decisions of the authority. It is also consistent with clauses 149(3) and 149(4) which confer, at the authority's discretion, a privilege from production of information in court. Rights of appeal against decisions of the authority are circumscribed in the bill. Appeals to the Supreme Court may be taken only by persons aggrieved by a decision of the authority to cancel or suspend a casino licence or to amend the conditions of a casino licence - and only on questions of law. A proposal to allow judicial review where there was a failure by the authority to observe the rules of natural justice has been abandoned in line with another of Sir Laurence Street's recommendations. Sir Laurence was firmly of the view that for the authority to have the confidence to exercise its powers in pursuit of its objectives it should be expressly released from any obligation to observe the rules of natural justice. Sir Laurence made the following comments: the authority needs to be free to take account of criminal intelligence and to act swiftly and decisively; the authority can only function effectively in the public interest if appeals on natural justice grounds are banned; the nature of the authority's membership should be accepted as a significant assurance of fairness; his own experience was relevant in assessing the restrictive and obstructive potential of a natural justice requirement. It is also interesting to note that the Victorian legislation did not adopt a natural justice provision. The Government is convinced that the circumstances justify the unusual step of a statutory release from any obligation to observe natural justice rules. It is appropriate to comment also on the immunity that the bill provides from the jurisdiction of the Ombudsman Act. Again, the Government has followed the recommendation of Sir Laurence Street in this respect. Sir Laurence was of the opinion that the public interest is better served by excluding the authority from the Ombudsman's jurisdiction as has been done in the Victorian legislation. He noted that many of the authority's and division's activities will already fall outside the Ombudsman's jurisdiction by virtue of the exclusions described earlier and there seemed little practical utility in enabling the Ombudsman to investigate such residual matters as presently fall within his jurisdiction. The Government believes that the public interest in the integrity of the casino industry far outweighs whatever benefits may accrue from preserving the Ombudsman's limited jurisdiction and powers of review." 127 The Authority argued that the specific exclusions of the need for reasons and the other provisions to do with judicial or other intervention in the workings of the Authority should be seen as part of a policy that the Authority be untrammelled in its decision-making, calling for a wide meaning of "review" in s 155(1). It added that the secrecy provisions in s 148 of the CC Act, which provisions nonetheless permitted disclosure to the New South Wales Crime Commission and the National Crime Authority, underlined that the legislature placed prime importance on freedom from criminal exploitation. In a case such as the present case in particular, it said, that importance should not be cut away by resort to the AD Act. 128 In Darling Casino Ltd v New South Wales Casino Control Authority in the Court of Appeal this legislative history was regarded as significant, at least as indicating that the usual bases upon which administrative actions may be challenged are not to apply to the exercise of the functions of the Authority and that the courts are not to have any supervisory power based on principles of natural justice. It does not follow, however, that "review" has a meaning of the width for which the Authority contended in this case, or that the application of the AD Act should be regarded as inimical to the integrity of the casino industry. 129 I do not think that "review" is to be limited in accordance with Ms Bignell's primary submission. As is shown by the cases to which I have referred, there can be challenge to the decision of an administrative body otherwise than in proceedings emulating the prerogative writs, and there does not seem to be good reason to confine s 155(1) to judicial review of that kind. Any statutory jurisdiction of judicial review would fall within it and, if there were otherwise a procedure for reconsideration of the Authority's decision it would involve review for the purposes of s 155(1). I am prepared to assume that any proceedings would involve review of the Authority's decision if the proceedings brought examination of the correctness of the decision in the manner earlier considered, that is, an examination of the validity or effectiveness of the decision. I see no reason, however, nor is there support in the cases when properly understood, for "review" in s 155(1) to extend to an inquiry under the AD Act unless the inquiry is into, or can affect, the validity or effectiveness of the decision. 130 What then, does the inquiry into Ms Bignell's complaint involve? I refer to the AD Act in the form agreed by the parties to govern this case. 131 Ms Bignell and the Authority are parties to the inquiry (AD Act s 100). They are entitled to appear, personally and by an officer, or with leave by a solicitor, counsel, or agent (s 101). The Tribunal may endeavour to resolve the complaint by conciliation, and shall take all such steps as to it seem reasonable to effect an amicable settlement of the complaint (s 106). 132 For the purposes of the inquiry the Tribunal is not bound by the rules of evidence, and may inform itself on any matter as it thinks fit (s 108(1)(a)). It must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms (s 108(1)(b)). It has the powers and authorities conferred by the Royal Commissions Act 1923 on a commissioner and the chairman of a commission (s 110). 133 The complaint may be dismissed if the Tribunal is satisfied that it is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason it should not be entertained (s 111(1)), or if the Tribunal is satisfied that the complainant does not wish to proceed with it (s 111(1A)). Interim orders pending determination of the matter the subject of the complaint may be made in order to preserve the status quo between the parties to the complaint or the rights of those parties (s 112). 134 If the inquiry continues to a conclusion, by s 113 of the AD Act- "(1) After holding an inquiry, the Tribunal may: (a) dismiss the complaint the subject of that inquiry, or (b) find the complaint substantiated and do any one or more of the following: (i) except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 95, order the respondent to pay to the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct, (ii) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations, (iii) except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 95, order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant, … (iv) make an order declaring void in whole or in part and either ab initio or from such other time as is specified in the order any contract or agreement made in contravention of this Act or the regulations, or (v) decline to take any further action in the matter. … (3) In making an order for damages under this section concerning a complaint lodged on behalf of a person or persons, the Tribunal may make such order as it thinks fit as to the application of those damages for the benefit of the person or persons. … " 135 Any amount ordered to be paid by the Tribunal may be registered as a judgment debt in a court of competent jurisdiction (s 115). By s 116, it is an offence to refuse, neglect or for any reason fail to obey or comply with an order referred to in s 113(1)(b)(ii) and (iii). 136 Thus if Ms Bignell's complaint is not earlier disposed of by withdrawal, consent, or summary dismissal, and is found substantiated in fact and law, she may obtain - (a) an order that the Authority pay her compensatory damages; (b) an order that the Authority not continue or repeat its conduct found to have been discrimination on the ground of her marital status; and (c) an order that the Authority "perform any reasonable act or course of conduct to redress any loss or damage" suffered by her. 137 Although the conduct of the Authority will have been found to be unlawful (see ss 44 and 47 earlier mentioned), the Authority will not have committed an offence, and s 123 of the AD Act specifically provides that a contravention of the Act "shall attract no sanction or consequence, whether criminal or civil, except to the extent expressly provided by this Act". Neither by force of the AD Act nor by order of the Tribunal will the Authority's decision not to grant a special employee licence to Ms Bignell be invalidated or rendered ineffective. An order for payment of damages will leave the decision intact - indeed, the fact of the decision and its effectiveness will be fundamental to the entitlement to compensation. An order that the Authority not continue or repeat the discriminatory conduct might have consequences in the event that Ms Bignell applies again for the grant of a licence, but it will not affect the decision. The reach of s 113(1)(b)(iii) is not clear, but on the assumption that it empowers the Tribunal to order that the Authority reconsider her application for a special employee licence (cf an order for reinstatement of an employee, see Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 and Holdaway v Qantas Airways Ltd (1992) EOC 92-430), the reconsideration will be by way of redress: again the original decision will be left intact, its existence and effectiveness being fundamental to the making of the order. In my opinion, the inquiry will not involve review of the Authority's decision within s 155(1) of the CC Act. 138 It follows that the appeal should be upheld, and it is unnecessary to consider whether the relief claimed by the Authority and granted by Black AJ was appropriate. 139 I propose the following orders - (1) If leave to appeal be necessary, grant leave to appeal. (2) Appeal allowed. (3) Orders made by Black AJ on 22 May 1998 set aside, and in lieu thereof dismiss the Authority's appeal to the Supreme Court with costs. (4) Order that the Authority pay Ms Bignell's costs of the appeal, but have a certificate under the Suitors Fund Act if qualified. ____________ 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.