High Court grants NSW's appeal in information protection case Tasmanian resident brought

The jurisdictional issue came before the Court of Appeal of the Supreme Court of New South Wales. On 17 August 2023, the appeal court made the following findings: 

• It could not distinguish this case from Brandy v Human Rights and Equal Opportunity Commission, [1995] HCA 10; (1995) 183 CLR 245 
• In line with the Brandy ruling, the tribunal exercises judicial power in making a s 55(2)(a) order directing a public sector agency to pay damages to compensate any loss or damage suffered due to conduct contravening ss 8–19 information protection principles 
• The tribunal lacked the jurisdiction to rule on certain claims the respondent filed against the state of New South Wales 

Upon receiving special leave to appeal, the state alleged that the appeal court made errors when it: 

• interpreted the registration and enforcement provision regarding a tribunal order to pay money in s 78 of the Civil and Administrative Tribunal (CAT) Act 2013 (NSW) to apply to an order under s 55(2)(a) of the PPIP Act 
• decided that s 78 imparted the character of judicial power to the tribunal’s s 55(2)(a) power 
• failed to determine that the tribunal’s s 55(2)(a) power did not involve a “matter” under s 75(iv) of the Constitution such that there would be no breach of chapter III of the Constitution, even if s 78 conferred the character of judicial power to the tribunal’s s 55(2)(a) power 
• failed to characterise the tribunal’s s 55(2)(a) power as non-judicial 

Appeal allowed

The High Court of Australia allowed the appeal but ordered the appellant to pay the respondent’s appeal and incidental costs. 

The court determined that it could distinguish Brandy from the present proceeding. The court acknowledged that the allegedly violated statutory provisions were incomparable to those subject of the complaint in Brandy.

First, the court ruled that the PPIP Act, as opposed to Brandy’s statutory scheme, did not establish a norm of conduct binding on an individual or specify that conduct violating such a norm would be unlawful. Instead, the court said the PPIP Act creates norms applicable only to public sector agencies.

Second, the High Court held that the internal review process under part five of the PPIP Act – manifestly an administrative body’s or individuals’ exercise of administrative power – established no enforceable right to a specific remedy. The court noted that s 53(7) of the PPIP Act empowered a public sector agency to do particular things, including taking no action. 

Third, the court decided that an applicant’s “right” to internal review under s 53(8)(c) of the PPIP Act 
meant the right to ask the tribunal to administratively review the internal review findings and the actions that those findings directed the public sector agency to take. 

The court added that s 53(8) demonstrated the New South Wales Parliament’s manifest intention for the tribunal’s review to fall within its administrative review jurisdiction. 

The court concluded that the tribunal order under s 55(2)(a) of the PPIP Act did not involve the tribunal’s exercise of judicial power and thus did not engage chapter III of the Constitution, given that the tribunal’s power was administrative and the respondent resided outside NSW. 

According to the High Court, by operation of s 78(3) of the CAT Act, a s 55(2)(a) tribunal order would become binding, authoritative, and enforceable as a court judgment upon the person filing the registrar’s certificate certifying the amount ordered by the tribunal in a court of the requisite jurisdiction. Without such a filing in the appropriate court, it would be unenforceable.