New South Wales v Wojciechowska

The High Court of Australia considered an appeal by the Commissioner of Police of New South Wales (the appellant) against a decision of the New South Wales Court of Appeal. The dispute arose from an order made by the New South Wales Civil and Administrative Tribunal (NCAT) under s 55(2)(a) of the *Privacy and Personal Information Protection Act 1998* (NSW), requiring a public sector agency to pay damages to the applicant, Ms Wojciechowska, for loss or damage suffered due to conduct contravening information protection principles. The core of the appellant's argument was that NCAT, in making such an order, was exercising the judicial power of the Commonwealth, which a State tribunal not constituting a "court of a State" cannot do.

The legal issues before the High Court were whether NCAT, in ordering the payment of damages, was exercising the judicial power of the Commonwealth, and whether the relevant provisions of the *Privacy and Personal Information Protection Act 1998* (NSW) were constitutionally valid in conferring such power on NCAT. Specifically, the Court had to determine if NCAT was a "court of a State" for the purposes of ss 77(ii) and (iii) of the Constitution, and if its exercise of power in this instance fell within the scope of matters contemplated by s 75(iv) of the Constitution, which pertains to matters between a State and a resident of another State. The Court also considered whether the decision in *Brandy v Human Rights and Equal Opportunity Commission* (1995) 183 CLR 245 was distinguishable from the present case.

The High Court reasoned that NCAT, in ordering the payment of damages, was exercising a power that was fundamentally judicial in nature, as it involved the determination of rights and liabilities arising from a contravention of statutory principles and the imposition of a monetary remedy. The Court held that NCAT was not a "court of a State" within the meaning of the Constitution and that the legislative capacity of a State Parliament to confer judicial power on such a tribunal was limited. The Court found that the exercise of power by NCAT in this instance was not merely administrative but involved the exercise of judicial power in relation to a matter that engaged the constitutional provisions concerning the judicial power of the Commonwealth.

The High Court allowed the appeal, set aside the declaration and order of the Court of Appeal, and dismissed the relevant part of the amended summons. The appellant was ordered to pay the first respondent's costs of the appeal.