Power, jurisdiction, duty
When questions of law arose in a privacy proceeding in the NSW Civil and Administrative Tribunal (Tribunal), where I was the applicant, I asked the Tribunal to, under s 54(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), refer the questions of law to the Supreme Court for the opinion of the Court, but the Tribunal said no.[1]
“We know the answer”, the Tribunal said, “and nobody has told us we’re wrong … this is bread and butter for us that we interpret this legislation”[2]. Then it agreed with the respondent that I could take another ride on the Appeal Panel merry go round if I thought the Tribunal got it wrong again.
So the Tribunal went ahead and (as I feared it would) construed the Health Records and Information Privacy Act 2002 (HRIP Act) and the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) as permitting a public agency to use with impunity health and personal information the Acts had prohibited the agency from collecting.[3]
When I appealed the Appeal Panel paraphrased prohibitions against the collection of health and personal information into requirements to collect health and personal information, said it wasn’t mandatory to consider the purpose of an Act when construing it, then applied its paraphrase,[4] all of which I thought wrong.
If I’d had plenty of money I’d have engaged a solicitor and a barrister and appealed to the Court of Appeal but I didn’t so I was stuck with the Appeal Panel’s decision (happily though, the matter settled not long afterwards).
Should have referred the questions
Tribunal members are only human; they hate having their decisions over-turned,[5] but just the same I think the Tribunal should have referred the questions of law.
Firstly, because the Tribunal’s unwillingness to be supervised by the Supreme Court frustrated not only me, it frustrated some of the objects of the CAT Act, specifically, the objects of ensuring that the decisions of the Tribunal are of a high quality (s 3(e)), and the object of promoting public confidence in tribunal decision-making (s 3(g)).
And secondly, because the Tribunal, who was exercising judicial power had, I’ve since concluded, a duty to refer the questions.
Judicial power
The High Court said, the “power to determine whether a person has engaged in conduct which is forbidden by law and, if so, to make a binding and enforceable declaration as to the consequences which the law imposes by reason of that conduct” is at the heart of judicial power.[6]
Judicial power in the Tribunal
The Court of Appeal said the Tribunal was exercising judicial power in an anti-discrimination proceeding because it “was determining whether there had been a contravention of the Anti-Discrimination Act, and, if so, whether a remedy should issue (which could include damages, an injunction, or an apology)”. If an order was made the applicant could “obtain a certificate from NCAT’s registrar which, when registered in a court, then “operates as a judgment of the Court”: Civil and Administrative Tribunal Act, s 78”.
This was a plain case of the exercise of judicial power, the Court of Appeal said, because the applicant was “able to obtain a binding authoritative and curially enforceable judgment independently of the consent of the person against whom his complaint had been brought”. [7]
(The case went to the High Court who did not disagree that “the proceedings in NCAT under the AD Act involved the exercise of judicial power by NCAT”[8].)
Judicial power in privacy proceedings
In privacy proceedings the Tribunal exercises the same powers that it exercises in anti-discrimination proceedings. It determines whether the PPIP Act and/or HRIP Act have been contravened and whether a remedy, which could include damages, an injunction, or an apology, should be made (see s 55(2) of the PPIP Act). If damages are awarded a certificate can be obtained from the Tribunal’s registrar which, when registered in a court, operates as a judgement of the Court (see s 78 of the CAT Act).
It follows that the Tribunal exercises judicial power in privacy proceedings.
Additional judicial power conferred
Power to refer questions of law
Section 54(1) of the CAT Act says:
The Tribunal (including when constituted as an Appeal Panel) may, of its own motion or at the request of a party, refer a question of law arising in the proceedings to the Supreme Court for the opinion of the Court.
The High Court said that powers that are exercisable in proceedings that constitute an exercise of judicial power are incidents of the exercise of judicial power[9]. And, the conferral of additional ancillary powers … to be exercised in the course of, and for better giving effect to, the court’s exercise of judicial power will have the character of judicial power.[10]
S 54(1) is exercisable in privacy proceedings that constitute the exercise of judicial power. It’s an additional power to be exercised in the course of the proceeding. S 54(1) has, therefore, the character of judicial power.
Better effect given
Referring questions of law to the Supreme Court for the opinion of the Court better gives effect to the Tribunal’s exercise of judicial power because, as the High Court said, “the seeking and the giving of the answers constitutes an important and influential, if not decisive, step in the judicial determination of the rights and liabilities in issue in the litigation”. Answers “are given as an integral part of the process of determining the rights and obligations of the parties which are at stake in the proceedings in which the questions are reserved”[11].
From judicial power to jurisdiction
The High Court said when the word ‘may’ confers judicial power then common law principle “treats it as giving a jurisdiction of which, the conditions being fulfilled, the party might demand the exercise”[12].
Applying the above, because the word ‘may’ in s 54(1) confers judicial power the common law treats the power to refer as jurisdiction to refer that a party can demand be exercised if the conditions (a question of law has arisen in a proceeding and a party has requested its referral) are fulfilled.
‘May’ connotes a duty
The High Court said, it is a “very important rule of construction” that where a statute gives a right to a defined class of persons and the jurisdiction is given to a court for the benefit of that class of persons, then permissive words [such as ‘may’] connote a duty, and if the conditions of the jurisdiction exist then the jurisdiction must be exercised.[13]
Very important rule applied
S 54(1) gives a party a right to request the referral of a question of law and it gives the Tribunal the jurisdiction to make the referral. Therefore, “may … refer a question of law” connotes a duty to refer a question of law that the Tribunal must exercise when a question of law arises in a proceeding and a party request its referral to the Supreme Court.
Imperative that authority is exercised
Another High Court said it’s a rule that “when a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorised, to exercise the authority when the case arises, and its exercise is duly applied for by a party interested, and having the right to make the application”.[14]
Rule applied
S 54(1) authorises the Tribunal to do the judicial act of referring a question of law to the Supreme Court, which makes it imperative on the Tribunal to exercise its authority when a question of law arises in a proceeding and a party requests its referral.
Requirement to promote CAT Acts objects
“In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule … shall be preferred to a construction that would not promote that purpose or object.”[15]
A construction of s 54(1) that says it gives the Tribunal a duty to refer questions of law that arise in a proceeding when a party requests the referral promotes the objects of the CAT Act, which (as said earlier) include ensuring that the decisions of the Tribunal are of a high quality (s 3(e)), and promoting public confidence in tribunal decision-making (s 3(g)).
A construction of s 54(1) that says the Tribunal has a discretion to not refer questions of law that arise in a proceeding does not promote the CAT Act’s above-mentioned objects.
The preferred construction is, therefore, that when the Tribunal is exercising judicial power, s 54(1) gives the Tribunal a duty to, at the request of a party, refer a question of law arising in the proceedings to the Supreme Court for the opinion of the Court.
[1] ALZ v WorkCover NSW [2015] NSWCATAD 241 (3 November 2015).
[2] Hearing transcript, 22 September 2015.
[3] ALZ v SafeWork NSW (No 2) [2016] NSWCATAD 121(16 June 2016).
[4] ALZ v SafeWork NSW [2017] NSWCATAP 51 (9 March 2017).
[5] Justice Robertson Wright, ‘The NSW Civil and Administrative Tribunal: Where did it come from? How does it work? How does the Supreme Court relate to NCAT?’ (2016) Supreme Court of New South Wales Seminar Sydney, [86]. <https://www.ncat.nsw.gov.au/Documents/speeches_and_presentations/20160316_paper_supreme_court_seminar.pdf>
[6] Vella v Commissioner of Police (NSW) [2019] HCA 38 (6 November 2019), [152].
[7] Burns v Corbett; Gaynor v Burns [2017] NSWCA 3 (3 February 2017), [30-31].
[8] Burns v Corbett; Burns v Gaynor; Attorney General for New South Wales v Burns; Attorney General for New South Wales v Burns; New South Wales v Burns [2018] HCA 15 (18 April 2018), [154].
[9] Cominos v Cominos [ 1972] HCA 54 (30 October 1972),Mason J., [9].
[10] Cominos v Cominos [ 1972] HCA 54 (30 October 1972), Stephens J., [18];
[11] Mellifont v Attorney-General (Qld) [1991] HCA 53 (12 December 1991), [22].
[12] Bowden v Bowden [1960] HCA 12 (01 March 1960), Dixon C.J., [4].
[13] R v Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union (“Shearers’ case”) [1960] HCA 46 (25 July 1960), Fullagar J., [9].
[14] Mayne v Jaques [1960] HCA 23 (3 May 1960), Windeyer J., [7].
[15] Interpretation Act 1987 (NSW), s 33.
