EHG v The Hon Yasmin Catley MP

[2025] NSWCATAD 176

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EHG v The Hon Yasmin Catley MP [2025] NSWCATAD 176

Hearing dates:

On the papers

Date of orders:

23 July 2025

Decision date:

23 July 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

The application for administrative review is dismissed for want of jurisdiction.

Catchwords:

ADMINISTRATIVE LAW – Privacy and Personal Information Protection Act 1998 (NSW) – reviewable decision - Public sector agency – jurisdiction

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act (2013) (NSW)

Government Sector Audit Act 1983 (NSW)

Government Sector Audit Regulation 2021

Government Sector Finance Act 1983 (NSW)

Government Sector Finance Act 2018 (NSW)

Government Sector Finance Legislation (Repeal and Amendment) Act 2018 (NSW)

Members of Parliament Staff Act 2013 (NSW)

Privacy and Personal Information Protection Act 1998 (NSW)

Public Sector Finance Legislation (Repeal and Amendment) Act 2018 (NSW)

Workers Compensation Act 1987 (NSW)

Cases Cited:

AQO v Minister for Finance and Services [2016] NSWCA 248

Baini v R [2012] HCA 59

Bushell v Repatriation Commission (1982) 175 CLR 408

Commissioner of Police, NSW Police Force v FYH [2024] NSWCATAP 176

Department of Education and Training v GA (No 23) [2004] NSWCATAP 50

EJE v Department of Education [2023] NSWCATAD 132

Grain Growers Limited v Chief Commissioner of State Revenue (NSW) [2016] NSWCA 259

ICI Australia Operations Pty Ltd v WorkCover Authority (NSW) (2004) 60 NSWLR 18

IW v City of Perth (1997) 191 CLR at 12-13.

Project Blue Sky Inc v ABA (1998) 194 CLR

Singh BHNF Ambu Anwar v Lynch [2020] NSWCA 152

State of New South Wales v Williamson [2011] NSWCA 183

The Owners – Strata Plan 87003 v Raysons Constructions Pty LTD [2025] NSWSC 66

Vella v Mir [2019] NSWCATAP 28 at [48].

Watkins v Tasman Tourism Pty Limited [2024] NSWCATAP 263

Texts Cited:

None cited

Category:

Principal judgment

Parties:

EHG (Applicant)
The Hon Yasmin Catley MP (Respondent)

Representation:

Counsel:
D Birch (Respondent)

Solicitors:
Applicant (Self-Represented)
Crown Solicitor (Respondent)

File Number(s):

2025/00104056

Publication restriction:

Pursuant to s 64(1)(a) and (c) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of the Applicant or reference to any information, picture or other material that identifies the Applicant or is likely to lead to the identification of the Applicant is prohibited.

REASONS FOR DECISION

1. This is an application for administrative review under s 55 of the Privacy and Personal Information Protection Act 1998 (NSW) (the PPIPA) lodged by EHG (the applicant) with respect to a decision made by the Hon Yasmin Catley (the Minister) to disclose his name to the Hon Cameron Murphy AM MLC (the Member). The applicant alleges that the Minister’s decision contravened s 18 of the PPIPA by disclosing his personal information.

2. The Privacy Commissioner did not appear or participate in the matter.

Background

3. On 17 July 2024, the Minister decided to refuse the applicant’s application for an ex-gratia payment. The Minister’s decision was informed by a report of the NSW Police General Counsel dated 4 April 2023. On 17 December 2024, the Minister declined a request by the applicant for a review of that decision.

4. However, on 18 December 2024, the applicant sent an email to the Minister’s office requesting an internal review under s 53 of the PPIPA, on the following grounds:

You were, however, very happy to discuss my personal information with The Honourable Cameron Murphy, telling him that “I am not going to reward bad behaviour.”

You can therefore take this correspondence as an application for a review of conduct under s 53 of the (PPIPA), as you have breached my privacy by unlawfully disclosing my personal information.

5. On 28 February 2025, the Minister gave the applicant notice of her internal review decision, which found, relevantly:

(a) Sometime in 2023 or 2024, the Minister and the Member had a conversation regarding the applicant’s ex-gratia payment request, following the Member receiving an inquiry from a third party about the ex-gratia payment request.

(b) The conversation between the Minister and the Member included personal information about the applicant, being the fact of his request for ex-gratia payment.

(c) There was no “disclosure” of the applicant’s personal information, contrary to s 18 of the (PPIPA), because:

(i) the personal information was already known to the Member, given the Member raised the personal information with the Minister; and

(ii) the disclosure was directly related to the purposes for which the applicant’s personal information was collected (see PPIP Act, s 18(1)(a)).

6. On 17 March 2025, the applicant lodged the current application for administrative review with the Tribunal. He sought a review of the decision dated 28 February 2025, on the basis that he disagreed with the Minister’s findings and decision.

Hearing dispensed with

7. During a case conference on 14 April 2025, the parties consented to a hearing of the respondent’s application that the Tribunal lacks jurisdiction to determine the matter be dispensed with. Senior Member Higgins determined that the Tribunal was satisfied that this application could be adequately determined on the papers after 27 May 2025, by considering any written submissions or material lodged with or provided to the Tribunal.

Jurisdiction of the Tribunal

8. It is necessary to determine whether the Minister’s conduct in her capacity as a Minister of the Crown is conduct of a “public sector agency” for the purposes of the PPIPA. If the answer to this question is yes, the decision is reviewable under Part 5 of the PPIPA, but if the answer is no, the decision is not reviewable and the Tribunal lacks jurisdiction to determine the current application.

The Minister’s case

9. The Minister relied upon the affidavit of Ms Helen Vallance affirmed on 8 May 2025.

10. Ms Vallance stated that she has been the Executive Director Finance & Operations of the Premier’s Department since 16 October 2024. She is responsible for the Finance, Workplaces & Transport Services branch of the Department. One branch of the Finance Team provides financial management at an entity level and is responsible for preparing financial reports and statements that meet statutory reporting obligations under the Government Sector Finance Act 1983 (NSW) (the GSFA) and the Government Sector Audit Act 1983 (NSW) (the GSA). She is required to sign-off on financial statements and reports to the Auditor-General that are prepared by that part of the Finance Team for the Department. The Department also provides administrative and other support services to Ministers and their staff under s 10 of the Members of Parliament Staff Act 2013.

11. Ms Vallance stated that individual Ministers and their respective offices do not maintain separate accounts. The Department holds an account with respect to administrative or working expenses of the respective officers of individual Ministers. Individual Ministers do not prepare financial statements in relation to their office expenses and the Department does not provide financial reports or financial statements in relation to individual Ministers’ officers to the Auditor-General for Audit.

12. The Department is required to prepare financial statements as to the Department as a whole, which are then provided to the Auditor-General for audit. These statements are also published in the annual report of the Department.

The Minister’s submissions

13. I have summarised the Minister’s written submissions as follows:

1. Section 28(1) of the Civil and Administrative Tribunal Act (2013) (NSW) (the NCAT Act) provides that the Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation.

2. The Tribunal “has administrative review jurisdiction” if enabling legislation provides that applications may be made to the Tribunal for administrative review of a decision: s 30 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act).

3. However, if the enabling legislation imposes preconditions that must be satisfied before an application can be made to the Tribunal, the Tribunal will only have jurisdiction if those pre-conditions are satisfied: s 9(2) of the ADR Act).

4. In EJE v Department of Education [2023] NSWCATAD 132, the Tribunal determined (at [48]) that if the enabling legislation does not permit an application to be brought to the Tribunal’s attention, the application will have no effect.

5. The applicant bears the onus of establishing that the Tribunal has jurisdiction to determine the application for administrative review: see Watkins v Tasman Tourism Pty Limited [2024] NSWCATAP 263 at [106(1)] and [107(1)], and Vella v Mir [2019] NSWCATAP 28 at [48].

6. Sections 52(1) and 53(1) of the PPIPA provide that an application for internal review under s 53 can only be made with respect to the (alleged) conduct of a “public sector agency”.

7. For the Tribunal to have administrative review jurisdiction in relation to the conduct of a public sector agency under s 55(1) of the PPIPA, there must have been a valid application for internal review of that conduct under s 53: see Department of Education and Training v GA (No 23) [2004] NSWCATAP 50 at [7]. If there was no valid application for internal review, an agency’s acceptance of a purported application does not confer the Tribunal with jurisdiction to conduct an administrative review: see Commissioner of Police, NSW Police Force v FYH [2024] NSWCATAP 176 (at [18]).

8. Therefore, if the conduct complained of is not the conduct of a public sector agency, it follows that there was no valid application for internal review and the Tribunal lacks jurisdiction to determine the alleged conduct of the Minister.

Public sector agency

1. Section 3(1) of the PPIPA defines this, relevantly:

public sector agency means any of the following—

…

(a1) the office of a political office holder within the meaning of the Members of Parliament Staff Act 2013, being the office comprising the persons employed by the political office holder under Part 2 of that Act,

…

(d) an auditable entity within the meaning of the Government Sector Audit Act 1983 or any other entity within the meaning of that Act (or entity of a kind) prescribed by the regulations, but excluding an entity (or entity of a kind) prescribed by the regulations,…

2. Paragraph (a1) refers to the office of a political holder within the meaning of the Members of Parliament Staff Act 2013 (NSW) (the MPSA Act), being the office comprising the persons employed by the political office holder under Part 2 of that Act .

3. A political officeholder is defined in s 3(1) of the MPSA Act to mean, inter alia, “a Minister”. A political officeholder may employ staff under Part 2 of that Act.

4. Therefore, para (a1) provides that a Minister’s office, comprising the persons whom the Minister employs, is a public sector agency. However, as Ministers do not employ themselves, a Minister is not a public sector agency.

5. Paragraph (a1) was inserted into the MPSA on 24 February 2014 and it was therefore in force when the Court of Appeal determined AQO v Minister for Finance and Services [2016] NSWCA 248 (AQO).

6. In AQO, the majority of the Court of Appeal (Basten and Ward JJA, McColl JA dissenting), held that a Minister fell within the statutory definition that was in force in 2016. However, McColl JA (dissenting) stated:

88. Although it is not conclusive, in my view, regard may also be had to the 2013 amendment which inserted sub-paragraph (a1) into the definition of “public sector agency” in the PPIP Act. Although it might be accepted that taking an amendment into account in determining the scope of prior legislation is a curious way of revealing parliamentary intention at the time of passing the earlier provision, where, in the context of remedial legislation, the legislature evinces an intention to expand the ambit of the Act, that is a relevant indication, in my view, of the provision’s otherwise intended narrower operation. In this context the 2013 amendment indicates both a legislative assumption that the PPIP Act did not hitherto extend to the office referred to in the sub-paragraph (a1) amendment and, of course, the improbability that the legislature otherwise intended the definition to extend to a Minister.

89. It is also relevant, in my view, to recognise that the 2013 amendment was made after the legislature received the Privacy Report stating that the PPIP Act did not apply to a Minister and recommending that it be amended to so apply, yet it chose not to take that course. That inaction is relevant to the legislative history and “tells in favour of not departing from” the meaning the Privacy Report had communicated to the legislature.

7. Her Honour proceeded on the basis that it was obvious that Ministers themselves were not caught by para (a1) and that this reflected a clear Parliamentary intention to not extend the scope of the definition of “public sector agency” to Ministers. Her Honour’s reasoning was not contradicted by the majority of the Court and it should be adopted by the Tribunal.

8. This interpretation is given greater force by the fact that the 2013 amendments are not subsequent amendments that purport to amend prior legislation. These amendments now form part of the prior legislation, against which the 2018 amendments must be interpreted.

Paragraph (d)

1. On 1 September 2021, para (d) was replaced entirely as a result of the commencement of Sch 4, cl 4.85 of the Government Sector Finance Legislation (Repeal and Amendment) Act 2018 (NSW) (the 2018 Amendment Act). Therefore, the current para (d) “must be construed according to its own terms rather than by reference to constructions placed on its statutory predecessor:: see Baini v R [2012] HCA 59 at [15], citing Bushell v Repatriation Commission (1982) 175 CLR 408 at 425.

2. As a consequence, the Court of Appeal’s observations in AQO as to the previous para (d) may apply to the current version, “but only if the statutory text permits”: Baini at [15]. Further, the task of comparing the current version with its predecessor, and the construction of that provision in AQO, “is only a useful exercise if doing so illuminates the actual text of the new provisions”: Baini at [20]. Therefore, the starting point is to analyse the words of the current para (d) to ascertain whether a Minister falls within its scope.

3. In his Second Reading Speech for the Government Sector Finance Act 2018 (NSW) (the GSFA), the Treasurer observed that the two bills were:

…the culmination of the Government’s 2013 commitment to bring government financial management of New South Wales into the twenty-first century and address concerns that the existing framework is outdated, fragmented and overly prescriptive. The Government’s approach to financial management reform comprises three pillars… The third pillar is the simplification and updating of the legislative framework governing public sector financial management.

The fact that the two bills effected a wholesale replacement of the existing statutory framework is a significant further reason for treating the decision in AQO as being of no current relevance.

4. Section 4 of the GSFA defined “auditable entity” as meaning each of the following:

(a) A GSF Agency (whether not a reporting GSF agency).

(b) A university or any of its controlled entities (within the meaning of (the GSFA).

(c) Any other entity –

(i) The financial reports or statement of which are subject to audit by the Auditor-General under this Act, (the GSFA) or any other Act, or

(ii) That is prescribed by the regulations to be an auditable entity.

This provision was introduced to the GSFA in 2018, but neither authorities nor extrinsic materials to that Act shine any light upon its meaning.

5. However, an immediate contextual indication that Ministers are not “auditable entities” under the GSFA is the further definition of “responsible Minister” in that Act. The GSFA contemplates that each “auditable entity” is to have a “responsible Minister.” “Responsible Minister” is defined in s 4(1), relevantly as follows:

Responsible minister, in relation to auditable entity, means –

(a) for a GSF Agency – the responsible Minister for the GSF agency within the meaning of (the GSFA) [see s 2.6 of that Act], or …

6. This definition aligns with the corresponding paragraph of the definition of “auditable entity,” which suggests that a Minister cannot themselves be an auditable entity under the GSFA and it is a nonsense to say that the responsible Ministers for Ministers are themselves.

7. The GSFA also uses the term “accountable authority” and this is defined in s 4(1) of the GSFA in a manner that does not readily apply to a Minister. The GSFA defines “GSF agency” in s 2.4, but s 2(4)(4) provides that a GSF Agency does not include a Minister (except to the extent to which Part 6 provides for a Minister to be treated as a GSF Agency). In relation to this carve-out, the Explanatory note to s 2.4 provides: “The proposed Act will also contain certain provisions that extend the government officers and Ministers, for example in relation to entering into financial arrangements. This suggests that the Act did not otherwise operate to extend to Ministers.

8. In ICI Australia Operations Pty Ltd v WorkCover Authority (NSW) (2004) 60 NSWLR 18 (ICI), the Court of Appeal considered the effect of a similar “treated as” provision in the Workers Compensation Act 1987 (NSW). McColl JA (Mason P and Meagher JA agreeing, held:

291 The words “treated as being” in s 151AC(2) operate in the same manner as a deeming provision. They create a statutory fiction so that pending the resolution of the insurer’s dispute, the designated insurer is to be treated as the insurer liable to provide indemnity to the employer, even though it may ultimately be found that, in fact, another insurer is the “insurer who is liable” in accordance with s 151AC(9) after the nature of employment inquiry has been undertaken (s 151AB).

292 Adopting the device of a statutory fiction does not mean the designated insurer is acting as an insurer respondent to an insurance policy. As Cave J said in R v Norfolk County Council (1891) 60 LJ QB 379 at 380:

Generally speaking, when you talk of a thing being deemed to be something, you do not mean to say that it is that which it is to be deemed to be. It is rather an admission that it is not what is deemed to be, and that, notwithstanding it is not that particular thing, nevertheless, for the purposes of the Act it is deemed to be that thing.

9. In the present case, there could be no argument that the Minister was exercising functions under Pt 6 of the GSFA in engaging in the alleged conduct, so as to be treated as a GSF agency. Further, the Minister is not prescribed as an auditable entity in the Government Sector Audit Regulation 2021 (the GSA Regulation), so as to be captured by (c)(ii) of the definition of an auditable entity in the GSFA.

10. Nowhere in the GSFA is there an obligation for financial reports or statements to be prepared in relation to the expenses of a Minister’s office.

14. The Minister concluded that the Tribunal is not bound by the majority decision in AQO, as this expressly dealt with the previous version of para (d). Further, textual matters in the PPIPA suggest that a Minister does not fall within the concept of a public sector agency for the purposes of this Act.

15. This is significant, as if the Legislature intended Ministers to themselves fall within the definition of “public sector agency,” it could easily have provided for this. However, it did not do so. There are also several provisions of the PPIPA, which proceed on the basis that Ministers are not public sector agencies.

16. In accordance with orthodox principles, the PPIPA should be read as a whole, seeking to give effect to every word within it, so as to avoid any provision being rendered otiose. In that context, the plain words of s 15(6) and related provisions strongly support a construction of the definition of “public sector agency” which does not extend to a Minister.

14. Therefore, the current application for administrative review should be dismissed for want of jurisdiction.

The applicant’s case

18. The applicant did not file any evidence, but he lodged submissions on 27 May 2025. I have summarised his submissions regarding jurisdiction as follows:

1. The Minister’s argument that she is not a public sector agency is unfounded.

2. The argument that the Minister is not a public sector agency because she is not an auditable entity under the GSFA is flawed, as the legislative history and structure of the PPIPA indicate an intention to regulate conduct relating to personal information across all public bodies, including executive officeholders. The Act must be read as a whole and in a way that gives effect to its purpose.

3. In relation to the decision in AQO, the fact that the new para (d) references auditable entities should not be interpreted as excluding all Ministers, especially where the purpose and practical effect of the legislation would be frustrated by such an exclusion.

4. It is well established that remedial legislation such as the PPIPA should be interpreted broadly to promote its objects: IW v City of Perth (1997) 191 CLR at 12-13.

5. Ministers exercise core executive Government functions and excluding them from obligations under the PPIPA would leave individuals with no redress against potentially serious invasions of privacy by those in the highest level of government. A narrow construction that excludes Ministers because their office expenses are incorporated into Departmental accounts is unconvincing and at odds with the legislative purpose.

6. The focus of the PPIPA is on the handling of personal information, not the existence of standalone financial audits and financial reporting obligations are not determinative of privacy obligations. The affidavit (of Ms Vallance) does not support that Ministers are exempt from the regulatory reach of the PPIPA.

7. Section 15(6) of the PPIPA states that a public sector agency includes a Minister and a Minister’s personal staff. This inclusion was likely made for clarity in respect of the correction rights under s 15, not as a signal to exclude Ministers from the rest of the Act.

8. The High Court has affirmed that the omission of express language elsewhere does not automatically imply exclusion: Project Blue Sky Inc v ABA (1998) 194 CLR at 355.

19. The applicant concluded that the Minister’s conduct is reviewable under Pt 5 of the PPIPA and that the Tribunal has jurisdiction to determine the current application for administrative review.

The Minister’s case in reply

20. The Minister filed submissions in reply on 3 July 2025, which I have summarised as follows:

1. The applicant’s submissions regarding statutory construction are contrary to orthodox principles. The purpose or object of a statute should not be derived extraneously, excluding consideration of the language of a crucial provision (whether a defined term or not) and then applied to construe that provision: Singh BHNF Ambu Anwar v Lynch [2020] NSWCA 152 (at [33]).

2. The applicant’s argument that the PPIPA is intended to apply to all executive officeholders simply assumes that which needs to be demonstrated. Also, it fails to appreciate that the PPIPA itself draws distinctions between public bodies and executive officeholders. In any event, his contention is too broad to be accepted, for example, it is difficult to see any basis in the language of the PPIPA for the Governor to fall within the scope of “public sector agency.”

3. On the contrary, the words of the PPIPA are the starting point and end point in its statutory construction: Grain Growers Limited v Chief Commissioner of State Revenue (NSW) [2016] NSWCA 259 (at [108]). While these words are to be construed in their context (which includes the objective of the PPIPA), clear words in the statute will prevail: see State of New South Wales v Williamson [2011] NSWCA 183 (at [29]).

4. Therefore, the applicant’s submissions do not identify any basis in the language of the PPIPA, the GSFA or the GSA to support his construction.

5. The “remedial legislation” principle does not apply to this matter, as s 3(1) of the PPIPA expressly picks up a definition from the GSA. The GSA is not remedial or beneficial legislation (neither is the GSFA). In any event, even if the principle did apply, it does not mean that every leeway of constructional choice should be exercised in favour of a plaintiff: see The Owners – Strata Plan 87003 v Raysons Constructions Pty LTD [2025] NSWSC 66 (at [66]).

6. In relation to the decision in AQO, the Tribunal is considering a different definition provided by para (d) and the Minister submits that a plain reading of the relevant provisions of the GSA leads to the conclusion that she is not an auditable entity for the purposes of the Act, and that a Minister is not a public sector entity for the purposes of the PPIPA. This is supported by the evidence of Ms Vallance.

7. The applicant argues that s 15(6) of the PPIPA does not automatically imply exclusion of a Minister. The Minister agreed with this, but argues that it is a significant factor in favour of her construction.

8. Further, Parliament’s failure to implement a Law Reform Commission recommendation is not determinative, but it is a factor in favour of the Minister’s construction.

21. Accordingly, the application for administrative review should be dismissed for want of jurisdiction.

Consideration

22. Section 55(1) of the PPIPA provides that if a person who has made an application for internal review under s 53 is not satisfied with either the findings of the review, or the action taken by the public sector agency in relation to the application, they may apply to the Tribunal for an administrative review under the ADR Act of the conduct that was the subject of the application under s 53.

23. In this matter, the applicant applied for an internal review of a decision made by the Minister under s 53 of the PPIPA and he alleges that she breached s 18 of the PPIPA by disclosing his personal information to the Member.

24. However, the Tribunal is only vested with jurisdiction to determine the current application if it is satisfied that the Minister is a public sector agency for the purposes of the PPIPA.

25. The parties have made extensive submissions on this question, which I do not intend to repeat here, but it is pertinent to note that s 3(1) of the PPIPA expressly defines public sector agency and that the relevant provisions in this matter are ss (a1) and (d).

26. Paragraph (a1) defines public sector agency to mean, “the office of a political office holder within the meaning of the Members of Parliament staff Act 2013, being the office comprising the persons employed by the political office holder under Part 2 of that Act”.

27. In my view, the Minister is the political office holder for the purposes of para (a1) and she does not fall within the definition of a public sector agency for the purposes of the PPIPA.

28. Paragraph (d) defines a public sector agency as being an auditable entity within the meaning of the GSA or any other entity within the meaning of that Act (or entity of a kind prescribed by the regulations, but excluding an entity (or entity of a kind) prescribed by the regulations.

29. While the applicant argues that the Tribunal should follow the majority decision of the Court of Appeal in AQO, which considered a previous version of para (d) and held that the Minister was a public sector entity, the Minister contends that the paragraph that was considered by the Court of Appeal was repealed and has been fully replaced with the current para since AQO was decided.

30. The Minister argues that the Tribunal should adopt the dissenting judgment of McColl JA in AQO, as her Honour held that regard may also be had to the 2013 amendment, which inserted sub-paragraph (a1) into the definition of “public sector agency” in the PPIPA Act. She observed that while taking an amendment into account in determining the scope of prior legislation is a curious way of revealing parliamentary intention at the time of passing the earlier provision, where the legislature evinces an intention to expand the ambit of the Act in remedial legislation, that is a relevant indication of the provision’s otherwise intended narrower operation. In that context, the 2013 amendment indicated both a legislative assumption that the PPIPA did not extend to a political office holder and the improbability that it otherwise intended the definition to extend to a Minister.

31. Her Honour held that it was relevant to recognise that the 2013 amendment was made after the legislature received the Privacy Report stating that the PPIPA did not apply to a Minister and recommending that it be amended to so apply, yet chose not to take that course. That inaction is relevant to the legislative history and “tells in favour of not departing from” the meaning the Privacy Report had communicated to the legislature.

32. The Minister argues that para (d) was entirely replaced from 1 September 2021, following the commencement of Sch 4 cl 4.85 of the Public Sector Finance Legislation (Repeal and Amendment) Act 2018 (NSW) (the 2018 Amendment Act), which renamed the Public Sector Finance Act, as the GovernmentSector Audit Act (the GSA Act).

33. Following the commencement of the 2018 Amendment Act, the task of interpreting para (d) involves consideration of its words and references to constructions that were placed on its statutory predecessor: see Bushnell at p 425. Further the majority’s view in AQO may apply to the present version of para (d), but only if the statutory text so permits: see Baini at [15].

34. I am satisfied that the 2018 Amendment Act was passed as a cognate Act and not as remedial legislation in relation to the PPIPA.

35. I am satisfied that neither the PSFA nor the GSA Act expressly define an auditable entity as including a Minister and there is no extrinsic material that evidence any Parliamentary intention to include a Minister in that definition. In fact, s 3.4(4) of the GSFA expressly provides that a GSF agency does not include a Minister (except to the extent to which Part 6 provides for a Minister to be treated as a GSF agency).

36. The Minister argues that Part 2.6 of the GSFA deals with matters including the entry of GSF agencies into financial services and arrangements. However, in this case, there could be no argument that the Minister was exercising functions under Part 6 of the GFSA in engaging in the alleged conduct, so as to be treated as a GSF agency.

37. I accept this argument, as it is consistent with the Court of Appeal’s approach in ICI, which has been extracted previously in this decision.

38. I also accept the Minister’s argument that the GSFA uses concepts of “responsible Minister” and “responsible authority” in a manner that assumes that a GSF agency will have a “responsible Minister” and “accountable authority,” which is fundamentally inconsistent with Ministers themselves being a GSF agency.

39. I am satisfied that the Minister is not prescribed as an auditable entity in the GSA Regulation and she is therefore not captured as an auditable entity in the GSA Act.

40. I am also satisfied, based on Ms Vallance’s evidence, which is not challenged, that the Minister is not captured by (c)(ii) of the GSA Act, as she is not an entity the financial reports or statements of which are subject to audit by the Auditor-General under the GSA, the GSFA or any other Act.

Conclusion

41. For these reasons, I make the following findings:

1. The applicant’s application for internal review dated18 December 2024 was not a valid application under s 53 of the PPIPA, as it was not made with respect to the alleged conduct of a public sector agency.

2. As the applicant did not make a valid application for internal review under s 53 of the PPIPA, the Tribunal lacks jurisdiction to determine the current application for administrative review.

Order

1. The application for administrative review is dismissed for want of jurisdiction.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 23 July 2025