21 February 2018
18 min read
Published by:
Chapter III or not Chapter III? That is the question (or not)...
Although the High Court is yet to hand down its decision concerning the jurisdiction of state tribunals in Burns v Corbett; Gaynor v Burns [2017] NSWCA 3 (Burns), the New South Wales Civil and Administrative Tribunal Appeal Panel (the Panel) has come to its own conclusion.
The Panel held in Johnson v Dibbin; Gatsby v Gatsby [2018] NSWCATAP 45 (Gatsby) that the New South Wales Civil and Administrative Tribunal (the Tribunal) is a “Court of a State” and can therefore exercise jurisdiction to determine matters between residents of two states.
Whilst at first blush this seems to deal with the same issues as those in Burns on which the High Court is reserved, there is an important difference.
Burns
A NSW resident commenced proceedings in the Supreme Court of NSW for contempt of court after a Victorian resident failed to make a public and private apology ordered by the former Administrative Decisions Tribunal (now the Tribunal). In answer it was argued that the Tribunal did not have jurisdiction, relying on the Victorian residency.
Section 39(2) of the Judiciary Act 1903 (Cth) (Judiciary Act) provides, relevantly, that Courts of the State have federal jurisdiction in all matters in which the High Court has original jurisdiction. Pursuant to s.75(iv) of the Constitution, the High Court has original jurisdiction in all matters “between States, or between residents of different States, or between a State and a resident of another State”.
It was common ground in Burns that the Tribunal was not a Court of State and that the Tribunal was exercising state judicial power.
The Court of Appeal held that a state tribunal which is not a “Court of a State” is unable to exercise judicial power to determine matters between residents of two states, because the state law which purports to authorise the tribunal to do so is inconsistent with the conditional investment by s.39(2) of the Judiciary Act (when read with s 39A) of all such jurisdiction in state courts.
Gatsby
The distinction in Gatsby is that the question for the Panel was whether the Tribunal is a Chapter III Court.
The case involved two separate residential tenancy disputes brought under the Residential Tenancies Act 2010 (NSW) between landlord and tenant. In each dispute, one party resided in Queensland and the other party resided in New South Wales. Applications were made in both disputes to the Tribunal.
In each matter, notices of appeal were filed against the Tribunal’s original decision and the issue of whether the Tribunal had authority to hear and determine the proceedings came to the fore. In making its determination, the Panel dealt with two questions:
a. Was the Tribunal exercising administrative or judicial power when determining the proceedings?
b. Is the Tribunal a Court of a State for the purposes of Chapter III of the Constitution and s 39 of the Judiciary Act?
With regards to question (a), the Panel rejected submissions that the powers exercised by the Tribunal were non-judicial, due to matters not necessarily being determined in accordance with law and that non-monetary orders handed down by the Tribunal lacked sufficient enforceability and finality. Instead, the Panel found the manner in which the Tribunal exercised its powers was consistent with the exercise of judicial power.
On question (b), the Panel held that the Tribunal is a Chapter III Court, having regard to:
· it meeting the requirements of the defining characteristics of a court, including if it is sufficiently independent and impartial, applies procedural fairness, adheres to the open court principle and provides reasons for its decisions
· Tribunal Members being “judges in substance”
· a “balance sheet approach” would lead to the determination that the Tribunal is in fact a Chapter III Court
· the Tribunal being a court of record.
What does this mean?
The effect of the Panel’s decision is that, for the time being, the Tribunal can hear and determine matters between a resident of New South Wales and a resident of a different state (there is also the legislative solution providing the Local and District Courts with jurisdiction). We would expect that Gatsby will be appealed. It remains to be seen how the High Court will view this development given that it remains reserved in Burns and having regard to the agreed position in that case.
Editorial: Eleanor Grounds, Christine Jones & Jack Collins
NSW Government Lawyers Linkedin Group
To start a conversation about Government Bulletin or issues of interest to NSW government lawyers, join the LinkedIn group NSW Government Lawyers by clicking on this link. Membership is open to those employed in the public sector.
In the media
Next week - government agencies and businesses must notify you of serious data breaches
In one week, the Notifiable Data Breaches (NDB) scheme comes into force. The scheme mandates that Australian Government agencies and businesses with obligations under the Privacy Act 1988 (Privacy Act) must notify you if you are likely to be at risk of serious harm because of a data breach (15 February 2018). More...
Information Commissioner's report reveals access applications on the rise
NSW Information Commissioner, CEO of the Information and Privacy Commission NSW (IPC), and NSW Open Data Advocate, today released the 2016/17 Report on the operation of the Government Information (Public Access) Act 2009 (GIPA Act), which has been tabled in Parliament. The 2016/17 Report shows the GIPA regime continues to grow and evolve with citizens lodging more applications and agencies releasing more information (14 February 2018). More...
Legal body sounds alarm on ‘failed’ justice targets
One of Australia’s legal bodies has highlighted the lack of co-ordinated national response measures being put in place to reduce the “shameful disproportion” in incarceration rates of Aboriginal and Torres Strait Islander adults and children. The NSW Law Society president has flagged that Australia has failed to establish ‘Closing the Gap’ justice targets, resulting in a “lack [of] co-ordinated national response to the most pressing problem facing our criminal justice system (14 February 2018). More...
Compliance with the Notifiable Data Breaches Scheme
Data breaches are an increasingly common threat worldwide, and legislation across jurisdictions is scrambling to keep up. Following the passage of the Privacy Amendment (Notifiable Data Breaches) Act 2017, the Office of the Australian Information Commissioner (OAIC) has introduced a new Notifiable Data Breaches Scheme (NDBS), which comes into effect on 22 February 2018 (13 February 2018). More...
The Wilpinjong Three tell court mine protest was a political act
Three people charged after a protest outside Wilpinjong coal mine in April 2017 have told a Mudgee magistrate the untested NSW Government laws they faced were unconstitutional. Ms Smiles, Mr Hughes and Mr Luce face up to seven years’ jail under the offences which were controversially passed by the NSW Government despite heavy criticism from the NSW Law Society, Bar Association and Council for Civil Liberties (09 February 2018). More...
New laws protect students from sexual predators
The NSW Government today introduced legislation to expand special care laws to ensure a teacher who has a sexual relationship with any student at their high school can face jail time. The Justice Legislation Amendment Bill 2018 will expand the definition of teacher under the special care offence (07 February 2018). More...
In practice and courts
[Draft] report: review of the Code of Conduct for Copyright Collecting Societies
The review found that the plethora of instruments regulating collecting societies, licensees and members gave rise to confusion as to the Code’s role and recommended ways to increase transparency. The review has proposed changes to standardise annual reporting arrangements and to increase public awareness of Code compliance. Submissions on the draft review must be made by 14 March. The Bureau's draft report can be accessed here (16 February 2018).
Open Government Partnership Australia
Australia’s first Open Government National Action Plan 2016-18 comprises 15 ambitious commitments that promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance. This website contains information on our Plan and progress towards its implementation. The next meeting is on 22 February, Canberra 2018. More...
Australian Copyright Council: Submissions
Comments on Exposure Draft of Copyright Amendment (Disability And Other Measures) Bill - 13 February 2018.
Law Council consults on Review of Australian Solicitors' Conduct Rules
The Law Council is undertaking a review of the Australian Solicitors’ Conduct Rules. This is the first comprehensive review of the Rules since they were first promulgated in June 2011. The Law Council’s Professional Ethics Committee has developed a Consultation Discussion Paper for the Review and invites comments and submissions on the issues raised and discussed. Read more here. The closing date for Submissions is 31 May 2018, which may be lodged here.
OAIC: Notifiable Data Breaches (NDB) scheme
Data breach notification will become mandatory as of February 2018 for all Australian entities required to comply with the Privacy Act 1988. When Federal Parliament passed the Privacy Amendment (Notifiable Data Breaches) Act 2017 last year, it started a process that means from February 22, 2018, all entities covered by the Australian Privacy Principles will have clear obligations to report eligible data breaches within 30 days. More...
OAIC: IC review procedure direction
The Australian Information Commissioner has issued a written direction under s55(2)(e)(i) of the Freedom of Information Act 1982 as to certain procedures to be followed in Information Commissioner (IC) reviews. The Direction applies to agencies and ministers during IC reviews and preliminary inquiries prior to the commencement of an IC review. The Direction has been published on the OAIC’s website and takes effect from 26 February 2018.
OAIC: Individuals affected by DIBP’s February 2014 data breach invited to provide evidence of loss or damage
The OAIC is seeking to contact individuals who were in immigration detention on 31 January 2014 and were affected by the Department of Immigration and Border Protection (DIBP) data breach, which occurred in February 201.4 Individuals affected by DIBP’s February 2014 data breach invited to provide evidence of loss or damage See also Immigration Data Breach Privacy Complaint Submissions close on 9 April 2018.
OAIC Key dates
Notifiable Data Breaches (NDB) scheme Commences 22 February 2018
Immigration Data Breach Privacy Complaint Closes 4pm, 19 April 2018
Australian Government Agencies Privacy Code Commences 1 July 2018
AAT Bulletin
The AAT Bulletin is a weekly publication containing a list of recent AAT decisions and information relating to appeals against AAT decisions:
Issue No. 5/2018, 12 February 2018
Issue No. 4/2018, 5 February 2018
Current Inquiries
Judiciary Amendment (Commonwealth Model Litigant Obligations) Bill 2017
The Senate referred the Judiciary Amendment (Commonwealth Model Litigant Obligations) Bill 2017 to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 8 May 2018. The deadline for submissions to the inquiry is 28 February 2018. More...
The adequacy of existing offences in the Commonwealth Criminal Code and of state and territory criminal laws to capture cyberbullying
On 7 September 2017 the Senate referred the below matter to the Legal and Constitutional Affairs References Committee for inquiry and report by 29 November 2017. On 19 October 2017 the Senate extended the committee's reporting date to the last sitting day in March 2018, which is 28 March 2018. More...
NSW
NCAT: Commencement of strata building bond and inspections scheme
Under Part 11 of the Act, NCAT can make the following orders about the new building bond and inspections scheme- Contract price of building work to determine the building bond amount and Access to the lot for an inspection or to rectify defective building work. The Strata application form has been updated to reflect these changes (09 February 2018).
Joint Protocol to reduce the contact of people with disability with the criminal justice system
The NSW Ombudsman’s office has developed a Joint Protocol for disability services and police. The Joint Protocol aims to reduce the frequency of police involvement in responding to behaviour by people with disability living in supported accommodation. This will facilitate collaboration between police and residential services for a coordinated approach (29 January 2018). More...
NSW Law Society: Cybersecurity warning
Law practices have received emails from people purporting to request legal services with attachments containing malware. To preserve your cybersecurity, think carefully before opening attachments from unknown addresses (29 January 2018). More...
Community to have its say on ancient mercy law
Attorney General Mark Speakman has called for public submissions on whether petitions for mercy and their outcomes should be made publicly available. The review will deliver its recommendations to the NSW Government by 6 April 2018. Anyone interested in making a submission should do so by close of business 9 February 2018. To lodge a submission to the review, please visit the NSW Government Have Your Say website.
ICAC: Prosecution briefs with the DPP and outcomes
Tables of prosecution briefs with the DPP and outcomes. Last updated 15 February 2018. More...
Published - articles, papers, reports
Reconciliation Action Plan February 2018-July 2019
ANAO: 15 February 2018
The ANAO confirms its commitment to reconciliation with Aboriginal and Torres Strait Islander peoples through the development and implementation of this Reconciliation Action Plan (RAP). More...
Review of Code of Conduct for Australian Copyright Collecting Societies: draft report
Bureau of Communications and Arts Research (BCAR); Department of Communications and the Arts (Australia): 14 February 2018
The Department of Communications and the Arts is seeking submissions from stakeholders on the draft findings and recommendations outlined in this draft report, and any other issues relevant to the inquiry terms of reference. More...
Review of Copyright Online Infringement Amendment: consultation paper
Department of Communications and the Arts (Australia): 13 February 2018
The Online Infringement Amendment enables a copyright owner to apply to the Federal Court of Australia to block access to an online location operated outside Australia with the primary purpose of infringing (or facilitating infringement of) copyright content. This review supports the Australian government’s commitment to review the operation of the Online Infringement Amendment. More...
Management of the Australian government’s Register of Lobbyists
Australian National Audit Office: 14 February 2018
The objective of the audit was to assess the effectiveness of the Department of the Prime Minister and Cabinet’s management of the Australian government’s Register of Lobbyists. It suggests that improvements could be made to communications, compliance management and evaluation for the code and the register. More...
Arrangements for the postal survey
Senate Finance and Public Administration References Committee: 13 February 2018
The committee wishes to stress that the focus of this inquiry, as per the terms of reference, is not the legalisation of same-sex marriage, but rather to scrutinise the process that the government chose to undertake in order to reach the point where the national parliament would consider legislation on this matter. More...
Report of the Inquiry under the Charitable Fundraising Act 1991 into the Returned and Services League of Australia (NSW branch), RSL Welfare and Benevolent Institution and RSL Life Care Limited
Patricia A. Bergin; Department of Finance, Services and Innovation (NSW): 12 February 2018
This inquiry, headed by former NSW Supreme Court Justice, Patricia Bergin SC, followed allegations of rorting and embezzlement within the RSL's New South Wales branch. More...
Cases
Maxcon Constructions Pty Ltd v Vadasz [2018] HCA 5
Appeal dismissed. Administrative law - Judicial review - Building and Construction Industry Security of Payment Act 2009 (SA) - Where subcontract provided for sum to be paid to subcontractor after issue of certificate of occupancy - Where issue of certificate of occupancy required certification from builder that building work performed in accordance with head contract - Where adjudicator appointed to determine disputed payment claim - Where adjudicator determined provisions of subcontract ineffective because pay when paid provisions - Whether adjudicator's determination involved error of law - Whether adjudicator's determination should be quashed.
Administrative law - Judicial review - Availability of certiorari - Error of law on face of record – Whether Building and Construction Industry Security of Payment Act 2009 (SA) ousts jurisdiction of Supreme Court of South Australia to make order in nature of certiorari to quash adjudicator's determination for non-jurisdictional error of law on face of record.
South Coast Hunters Club v Eurobodalla Shire Council [2018] NSWCATAD 42
ADMINISTRATIVE REVIEW - Government Information (Public Access) - application for review by person aggrieved by decision to release information - no increased risk to public safety - information not shown to be of competitive commercial value - information not provided in confidence.
CNS v Transport for NSW [2018] NSWCATAD 40
ADMINISTRATIVE Law - PRIVACY - Personal Information - Whether reasonably necessary to collect information for allied purpose - Right to anonymous travel - Travel History -- Purpose of collection unrelated to collection - Purpose of collection unrelated to use - General right to privacy.
Johnson v Dibbin; Gatsby v Gatsby [2018] NSWCATAP 45
CONSTITUTIONAL LAW - judicial power - whether Civil and Administrative Tribunal (NSW), NCAT, exercises judicial power - whether NCAT exercises judicial power when determining matters under the Residential Tenancies Act 2010 (NSW) - NCAT exercises judicial power CONSTITUTIONAL LAW - Chapter III courts - defining characteristics of Chapter III courts - whether Civil and Administrative Tribunal (NSW), NCAT, a “court of a State” within Chapter III - NCAT is a court of a State for the purposes of Chapter III COURTS AND TRIBUNALS - Civil and Administrative Tribunal (NSW), NCAT - jurisdiction of NCAT - whether Tribunal has authority to adjudicate in matters under the Residential Tenancies Act 2010 (NSW) between residents of different states - NCAT has authority to adjudicate COURTS AND TRIBUNALS - courts of record - Civil and Administrative Tribunal (NSW), NCAT - whether NCAT a court of record - NCAT a court of record.
ZFV & anor v ZFW & ors [2018] NSWCATAP 44
HUMAN RIGHTS - Tribunals, commissions and other authorities - Civil and Administrative Tribunal - procedural fairness - application of hearing rule HUMAN RIGHTS - Legislation - application of failure to give parties notice of hearing as required by s10 of Guardianship Act 1987 (NSW).
Cooper v NSW Ministry of Health [2018] NSWCATAD 37
ADMINISTRATIVE LAW - Government information - access - Cabinet Information - general principles - reasonable grounds - temporal scope - subject matter scope - revealing “the position” of a particular Minister.
Stuart v Commissioner for Fair Trading [2018] NSWCATAD 39
ADMINISTRATIVE LAW - administrative tribunals - procedure - distinction between stay of orders and order temporarily granting a licence - whether member of outlaw motor cycle gang is a “close associate” of an applicant for an operator licence under the Tattoo Parlours Act 2012 (NSW) - public interest considerations.
David DeBattista v Minister for Planning [2018] NSWLEC 8
PRACTICE AND PROCEDURE - notice of motion - leave sought to adduce expert evidence - interrogatories - enforcement proceedings - judicial review - whether evidence relevant to decision under review - relevance matter for trial judge - motion allowed.
Legislation
Commonwealth
Australian Human Rights Commission Repeal (Duplication Removal) Bill 2018
Introduced Senate: 15/02/2018 - The purpose of the Australian Human Rights Commission Repeal (Duplication Removal) Bill 2018 is to remove commonwealth involvement in running a public funded commission to advocate on human rights. The bill anticipates that states and territories will take up this advocacy and responsibility. The bill does not alter the Age Discrimination Act 2004, the Disability Discrimination Act 1992, the Sex Discrimination Act 1984 and the Racial Discrimination Act 1975, including the relevant offence provisions in these Acts. Aggrieved plaintiffs will retain the right to take action under the relevant anti-discrimination regimes in the States and Territories, where applicable. Persons aggrieved under those Acts can seek federal authorities’ enforcement of the offence provisions of those Acts.
Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2018
House of Representatives: Introduced and read a first time 15/02/2018 - Amends the: Enhancing Online Safety Act 2015 to: prohibit the posting of, or threatening to post, an intimate image without consent on a social media service, relevant electronic service or a designated internet service; establish a complaints and objections system to be administered by the eSafety Commissioner; provide the commissioner with powers to issue removal notices or remedial directions; establish a civil penalty regime to be administered by the commissioner; and enable the commissioner to seek a civil penalty order from a relevant court, issue an infringement notice, obtain an injunction or enforce an undertaking, or issue a formal warning for contraventions of the civil penalty provisions; and Broadcasting Services Act 1992 to make a consequential amendment.
Crimes Amendment (National Disability Insurance Scheme-Worker Screening) Bill 2018
House of Representatives Second reading moved 15/02/2018 - The amendments in this Bill would create an exception for convictions of persons who work, or seek to work, with people with disability in the National Disability Insurance Scheme (NDIS) so that those convictions can be disclosed to, and taken into account by, Commonwealth, State and Territory agencies, to enable State and Territory worker screening units to determine whether the person is suitable to work with people with disability in the NDIS.
Identity-matching Services Bill 2018
House of Representatives Introduced and read a first time Second reading moved 07/02/2018. The Bill will provide explicit legal authority for the Department of Home Affairs (Home Affairs) to collect, use and disclose identification information in order to operate the technical systems that will facilitate the identity-matching services envisaged by the Intergovernmental Agreement on Identity Matching Services (IGA).
NSW
Bills introduced Non-Government
Family Impact Commission Bill 2018
Medicinal Cannabis (Compassionate Access) Bill 2018
Bills passed by both Houses of Parliament
Vexatious Proceedings Amendment (Statutory Review) Bill 2018
Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources.
Published by:
