Federal tribunals

Background

35.31 Except for the Australian Industrial Relations Commission (AIRC), federal tribunals are not exempt from the operation of the Privacy Act. Before considering whether they should be exempt, the threshold issue is which agencies fall within the term ‘federal tribunal’. This issue arises because the term ‘tribunal’ is imprecise and difficult to define.[44] Some legislative attempts at defining tribunals do not distinguish tribunals from courts. For example, the Legislation Act 2001 (ACT) defines tribunal to include ‘any entity that is authorised to hear, receive and examine evidence’.[45] Other definitions distinguish ‘tribunal’ from courts, but do not distinguish it from other review agencies, such as ministers and other public decision makers. For example, s 2 of the Administrative Law Act 1978 (Vic) provides that:

tribunal means a person or body of persons (not being a court of law or a tribunal constituted or presided over by a Judge of the Supreme Court) who, in arriving at the decision in question, is or are by law required, whether by express direction or not, to act in a judicial manner to the extent of observing one or more of the rules of natural justice.

35.32 The Council of Australasian Tribunals (COAT), the peak body for all Commonwealth, state, territory and New Zealand tribunals,[46] defines ‘tribunal’ as:

any Commonwealth, State, Territory or New Zealand body whose primary function involves the determination of disputes, including administrative review, party/party disputes and disciplinary applications but which in carrying out this function is not acting as a court.[47]

35.33 One way of categorising tribunals is to divide them into ‘court-substitute’ and ‘policy-oriented’ tribunals. Court-substitute tribunals are closely modelled on courts and primarily act as providers of dispute resolution services. Tribunals that are considered to be court-substitute tribunals are merits review tribunals, such as the Administrative Appeals Tribunal (AAT), and those that have taken over former jurisdictions of the courts, such as consumer claims tribunals. Policy-oriented tribunals, such as the Australian Communications and Media Authority and Australian Security and Investment Commission, are mainly responsible for formulating and applying policy, but may have adjudicative and other functions.[48] In practice, however, the division between policy and court-substitute tribunals is not strict.

35.34 There is no exhaustive list of federal tribunals. COAT currently has 13 members that are federal tribunals, including: the AAT; the Australian Competition Tribunal; the Classification and Review Board; the Companies Auditors and Liquidators Disciplinary Board; the Copyright Tribunal of Australia; the Migration Review Tribunal; the Refugee Review Tribunal; the National Native Title Tribunal; the OPC; the Professional Services Review scheme; the Social Security Appeals Tribunal; the Superannuation Complaints Tribunal; and the Veterans’ Review Board.[49] Membership with COAT is voluntary, however, and many federal tribunals are not members of the body.[50]

35.35 Since federal tribunals are part of the executive arm of government, they are prohibited from exercising the judicial power of the Commonwealth under s 71 of the Australian Constitution.[51] They lack the power to make determinative findings of law, and their decisions are subject to scrutiny by the courts, either through judicial review or statutory appeal on questions of law. The decision-making powers of tribunals are drawn from, and cannot exceed, those of the primary decision maker. Tribunals only may interpret law incidentally in the course of their proceedings, and such interpretations are not binding on the parties as a declaration of rights and obligations.[52] They also have no power to enforce their own decisions.[53]

Application of the IPPs to federal tribunals

35.36 Federal tribunals are currently able to rely on the exceptions to Information Privacy Principles (IPPs) 10 and 11 to use and disclose personal information in the course of exercising their functions.[54] IPPs 10 and 11 relevantly provide that an agency may use or disclose personal information where:

  • the individual is aware, or reasonably likely to be aware, that information of that type is usually passed to a person, body or agency;[55]

  • the individual has consented to the use or disclosure; [56]

  • the record-keeper believes on reasonable grounds that the use or disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual or other persons; [57]

  • use or disclosure is required or authorised by or under law; [58]

  • use or disclosure is reasonably necessary for enforcement of the criminal law or a law imposing a pecuniary penalty, or for the protection of the public revenue;[59] or

  • use of the information is directly related to the purpose for which it was obtained.[60]

35.37 In addition, the constituent Acts of these tribunals authorise the use and disclosure of personal information in certain situations.

Industrial tribunals

35.38 Agencies listed in sch 1 of the FOI Act are exempt from the Privacy Act except in relation to administrative matters.[61] These agencies include the AIRC and the Industrial Registrar and Deputy Industrial Registrars. Another agency listed in sch 1 of the FOI Act is the Australian Fair Pay Commission (AFPC). The AFPC is not a tribunal.[62] The exemption that applies to the AFPC is considered in Chapter 36.

35.39 The AIRC is an independent, national industrial tribunal established under the Workplace Relations Act 1996 (Cth). The functions of the AIRC include: assisting employers and employees in resolving industrial disputes; handling certain termination of employment claims; rationalising and simplifying awards; and dealing with applications about industrial action.[63] The Industrial Registrar and Deputy Registrars provide administrative support to the AIRC. They also have responsibilities relating to the registration of unions and employer associations and their financial accountability.[64]

35.40 In performing its functions, the AIRC has certain powers, including the power to: inform itself in any manner it thinks appropriate; take evidence on oath or affirmation; conduct proceedings in private; summons any person to be present before the AIRC; compel the production of documents and other things; direct a person to attend a conference; and make interim and final decisions.[65]

Other federal tribunals

35.41 Other than the AIRC, no federal tribunals are exempt from the operation of the Privacy Act. Some examples of federal tribunals include the AAT, the Migration Review Tribunal (MRT), the Refugee Review Tribunal (RRT), the Social Security Appeals Tribunal (SSAT) and the National Native Title Tribunal (NNTT).

Administrative Appeals Tribunal

35.42 The AAT provides independent review of a wide range of administrative decisions made by the Australian Government and some non-government bodies. The AAT has jurisdiction to review decisions made under more than 400 separate Acts and legislative instruments, including decisions in the areas of social security, taxation, veterans’ affairs, workers’ compensation, bankruptcy, civil aviation, corporations law, customs, freedom of information, immigration and citizenship, industry assistance and security assessments undertaken by the Australian Security Intelligence Organisation.[66]

35.43 The AAT generally is required to hold hearings in public, except where the AAT is satisfied that, by reason of the confidential nature of any evidence or matter or for any other reason, it is desirable for the hearing to be held in private.[67] The AAT may give directions prohibiting or restricting the: publication of the names and addresses of witnesses; publication of matters contained in documents lodged with, or received in evidence by, the AAT; and the disclosure to some or all of the parties of evidence given before the AAT, or of the content of a document lodged with, or received in evidence by, the AAT.[68] In addition, an application for a review of a security assessment made to the Security Appeals Division of the AAT must be held in private.[69] The AAT also may restrict the publication of evidence and findings in the hearing of such an application.[70] The AAT is required to give reasons either orally or in writing for its decision, except in limited circumstances.[71]

35.44 Members and staff of the AAT are subject to a number of provisions prohibiting the disclosure of information in particular circumstances. These confidentiality obligations are found in the Administrative Appeals Tribunal Act 1975 (Cth) and in other Acts and legislative instruments that confer jurisdiction on the AAT.[72]

Migration Review Tribunal and Refugee Review Tribunal

35.45 The MRT is a merits review body established under the Migration Act 1958 (Cth). The MRT provides a final, independent merits review of visa and visa-related decisions made by the Minister for Immigration and Citizenship or, more typically, by officers of the Department of Immigration and Citizenship, acting as delegates of the Minister.[73] The MRT must conduct hearings in public, unless the tribunal considers that it is in the public interest to take evidence in private.[74] Examples of matters where an MRT review may be conducted in private include cases that involve allegations of children at risk of domestic violence, or sensitive information about the health of an individual.[75]

35.46 The RRT also was established under the Migration Act. It is an independent merits review tribunal, responsible for reviewing decisions made by the Department of Immigration and Citizenship to refuse or cancel protection visas to non-citizens in Australia. The RRT also has the power, in respect of certain ‘transitory persons’, to conduct an assessment of whether a person falls within the legal meaning of ‘refugee’.[76] Unlike a court, the RRT is not adversarial. The Department usually is not represented at RRT hearings. The RRT is inquisitorial in nature and can obtain whatever information it considers necessary to conduct the review. All reviews before the RRT must be conducted in private.[77]

35.47 Both the MRT and RRT are subject to the same confidentiality requirements under the Migration Act. Sections 377 and 439 of the Act prohibit members and officers of the tribunals and interpreters from recording, communicating or divulging any information or documents about a person obtained in the course of exercising a function or duty under the Act, unless it is necessary for the performance of that function or duty or for the purposes of the Act. In addition, both tribunals have the power to restrict publication of information if it is in the public interest to do so.[78]

Social Security Appeals Tribunal

35.48 The SSAT is a statutory body established under the Social Security (Administration) Act 1999 (Cth). It falls within the portfolio of the Minister for Families, Housing, Community Services and Indigenous Affairs. The role of the SSAT is to conduct merits review of administrative decisions made under social security law, family assistance law, child support law and various other pieces of legislation. It is the first level of external review of decisions made by Centrelink about social security, family assistance, education or training payments. It is also the first level of external review of most decisions made by the Child Support Agency.[79]

35.49 The SSAT must hear reviews in private, and directions may be given as to the persons who may be present at any hearing of a review. In giving such directions, the wishes of the parties and the need to protect their privacy must be considered.[80] The Executive Director of the SSAT may make an order directing a person who is present at the hearing not to disclose information obtained in the course of the hearing.[81] When the SSAT makes its decision on a review, it must prepare a written statement setting out the decision, the reasons for the decision and the findings on any material questions of fact, and refer to evidence and other materials on which the findings of fact were based.[82] A copy of the statement must be given to the parties to the review.[83] Members of the tribunals and interpreters are prohibited from recording, communicating or divulging any information or documents about a person obtained in the course of exercising a function or duty under the Act, unless it is necessary for the performance of that function or duty or for the purposes of the Act.[84]

National Native Title Tribunal

35.50 The NNTT is an independent Australian Government agency established under the Native Title Act 1993 (Cth) to assist people to resolve native title issues over land and water. It falls under the portfolio of the Attorney-General of Australia.[85]

35.51 The NNTT has numerous functions, including: holding inquiries in relation to native title issues and applications; holding mediation conferences concerning native title claims; reviewing whether a native title claim group holds native title rights and interests; reconsidering native title claims where the Native Title Registrar does not accept a native title claim for registration; providing assistance, mediating or conducting reviews; making determinations or making a report after holding certain inquiries; and carrying out research for the purpose of performing its functions.[86]

35.52 For the purposes of an inquiry, the President of the NNTT may direct the holding of a conference of the parties or their representatives to help resolve any matter that is relevant to the inquiry or hearings. The NNTT has the power to take evidence on oath or affirmation; summon a person to appear before it to give evidence and produce documents; receive evidence in the course of an inquiry and draw conclusions of fact from the transcript of evidence in proceedings; adopt any report, findings, decision, determination or judgments that may be relevant to an inquiry; and dismiss applications or reinstate applications that have been dismissed in error.[87]

35.53 The NNTT must hold mediation conferences in private, unless the presiding member directs otherwise and no party objects.[88] On the other hand, hearings conducted for the purposes of an inquiry are to be held in public except in certain circumstances.[89] Reviews, mediation conferences and conferences held for the purposes of an inquiry are made without prejudice to the parties’ legal rights.[90] The presiding member of an inquiry or review may prohibit the disclosure of information given, statements made or contents of documents produced at a conference or in the course of a review of native title rights and interests.[91] The NNTT also may prohibit the disclosure of any evidence given before it or the contents of any documents produced to it during hearings.[92] Determinations and reports about matters covered in an inquiry must be in writing and must state any findings of fact upon which the determination or report is based.[93]

Submissions and consultations

35.54 In DP 72, the ALRC asked whether the Privacy Act should be amended to provide that federal tribunals be exempt from the operation of the Act in respect of their adjudicative functions; and if so, what the scope of ‘adjudicative functions’ should be.[94]

Industrial tribunals

35.55 The President of the AIRC, the Hon Justice GM Giudice, submitted that the AIRC should remain exempt from the operation of the Privacy Act for two main reasons: the AIRC is obliged to act judicially; and, subject to some exceptions, its hearings and decisions are open to public scrutiny. His Honour stated that the policy issues that apply to the courts also apply to bodies that are required to act judicially, and therefore the AIRC should be in the same position as the courts.[95]

35.56 The Department of Employment and Industrial Relations (DEWR) (now the Department of Education, Employment and Workplace Relations) submitted that, on public interest grounds, the industrial tribunals should remain exempt in relation to non-administrative matters. DEWR suggested that:

These organisations are not exempt in relation to their administrative activities, only in connection with their official functions. In this regard, these standard setting, conciliation and quasi-judicial tribunals are treated in the same fashion as federal courts … and DEWR is not aware of any compelling arguments to remove the exemption.[96]

35.57 While not commenting on whether the current partial exemptions that apply to industrial tribunals are appropriate, the OPC considered that ‘entities with like functions should be treated consistently under the Privacy Act’. The OPC also suggested that ‘where exemptions apply it would be worthwhile introducing good privacy practices so that individuals understand how their personal information will be handled’.[97]

35.58 One individual submitted that there is no valid reason why there should be an exemption for agencies in the area of industry and the workplace.[98]

Exemption for ‘federal tribunals’ as a class of agencies

35.59 The AAT and SSAT submitted that it may not be appropriate to exempt all federal tribunals,[99] particularly given the different objects and purposes of the FOI Act and Privacy Act,[100] and the fact that some of them are required to hold hearings in private.[101] In contrast, the MRT and RRT stated that, although they do not consider that there is a need for them to be exempt from the operation of the Privacy Act, they anticipate that ‘consideration may be given by the ALRC to the degree to which there should be consistency in coverage in respect to all federal tribunals’.[102]

35.60 While not commenting on whether federal tribunals should be partially exempt from the operation of the Privacy Act, the OPC considered that ‘entities with similar functions should be treated consistently’ under the exemption provisions of the Privacy Act. It noted that, since the ALRC supports the use of the words ‘non-administrative nature’ in relation to federal courts, the same words should be used in framing any exemption that applies to federal tribunals so as to promote consistency. The OPC submitted that, if the exemptions that apply to courts and tribunals are framed differently, the policy basis for such a difference should be explained. The OPC further stated that:

Whichever form of words is used, the Office submits the exemption should be clearly defined so as to enable agencies, organisations and the community to determine what information falls within the scope of an exemption.[103]

35.61 Both the Australian Privacy Foundation and the Cyberspace Law and Policy Centre submitted that there should be no general exemptions for federal tribunals, as they appear to operate effectively despite being subject to the IPPs.[104]

35.62 Some stakeholders submitted that a limited exemption or specific exceptions to the privacy principles would be more appropriate in relation to federal tribunals. The Public Interest Advocacy Centre (PIAC) accepted that compliance with privacy principles may cause difficulties for tribunals in some circumstances, for example, where tribunals need to disclose personal information for the purposes of their review functions. It considered, however, that there is no justification for a broad exemption for federal tribunals. Instead, such difficulties should be dealt with by way of specific, limited exceptions to the privacy principles.[105]

35.63 National Legal Aid also saw value in ‘a more limited exemption to cover adjudicative functions’, but questioned whether this should take the form of ‘a blanket exemption from the proposed uniform privacy principles or could be practically achieved by an appropriate exemption from those principles which do not fit with adjudicative functions’.[106]

35.64 Privacy NSW noted that an exemption for federal tribunals in respect of their adjudicative functions would be consistent with the exemption that applies to federal courts as well as that which applies to New South Wales courts and tribunals under New South Wales privacy law. It submitted, however, that ‘consistency is not necessarily a compelling policy reason’ for granting federal tribunals an exemption. Privacy NSW suggested that:

should federal tribunals be exempted, they should, (along with federal courts and other tribunals), develop and publish privacy rules that form part of the court or tribunal procedural rules. Such rules should include guidance to judges and tribunal members about limiting the inclusion of sensitive or high value identification information in judgements, especially those which will be published electronically.[107]

35.65 One stakeholder noted that ‘there is not the same constitutional basis for exempting tribunals as exists in the case of Courts’. It nevertheless supported the exemption of tribunals from the operation of the Privacy Act in the performance of their adjudicative functions. This is because the integrity of the adjudicative process requires that a review of, or an appeal against, a tribunal’s decision only should be brought in the manner for which its enabling legislation provides. Subjecting a tribunal’s decision to a review by the OPC would allow litigants to seek a secondary review of that decision outside of the adjudicative process.[108]

35.66 The Australian Bankers’ Association submitted that ‘the widespread use of tribunals instead of courts for the resolution of cases ought to place tribunals in a position comparable with the courts’.[109]

35.67 NADRAC submitted that, whether court-provided, court-ordered or court-referred, ADR processes fell within the scope of the exemption of federal courts from the operation of the Privacy Act. It suggested that the issue of whether ADR processes are clearly within the scope of an exemption is equally relevant to tribunals, which are significant providers and users of ADR, as it is to courts.[110]

Exemption for individual tribunals

35.68 In their submissions, several tribunals argued that they should be partially exempt from the operation of the Privacy Act. The AAT considered that it should be exempt in the same way as federal courts in the interests of consistency and in accordance with the principle of open justice.[111] The AAT argued that it should be exempt ‘in relation to activities undertaken for the purpose of carrying out its functions under the Administrative Appeals Tribunal Act 1975’, for the following reasons:

  • as a body that resolves disputes, the AAT shares significant attributes with the federal courts, which are partially exempt from the Privacy Act, and with courts and tribunals that are partially exempt from privacy legislation in a number of states and territories;

  • there is extensive overlap between the work of the Federal Court and that of the AAT, and the AAT is quite distinct from other federal tribunals because it acts like a court;

  • privacy issues are already dealt with appropriately by the AAT within the framework of the AAT Act, as well as through consultation with the Privacy Commissioner; and

  • the application of a number of the proposed Unified Privacy Principles (UPPs) would present difficulties for the AAT. The AAT would have to rely extensively on exceptions to the UPPs in the course of its ordinary operations, indicating that it would be appropriate for it to be partially exempt.[112]

35.69 In its submission to Issues Paper 31, Review of Privacy (IP 31), the SSAT stated that it should not be exempt from the operation of the Privacy Act, on the proviso that the exceptions to privacy principles concerning the use and disclosure of personal information remain substantially the same.[113]

35.70 The MRT and RRT also have previously submitted that there was no need for them to be exempt from the operation of the Privacy Act, on the basis that exceptions to the IPPs would permit the tribunals to disclose personal information where it is necessary for the purposes of a particular review.[114] While the MRT and RRT remained of the view that an exemption from the Privacy Act in its current form is not required, they submitted that an exemption in respect of their adjudicative functions would be appropriate if the UPPs were to be adopted.[115]

35.71 The AAT, SSAT, MRT and RRT also submitted that their legislative framework provides an appropriate level of safeguards for their handling of personal information, including requirements under different pieces of legislation,[116] and confidentiality obligations on tribunal staff prohibiting disclosure of information in particular circumstances.[117]

35.72 The NNTT submitted that there should be a specific exception in relation to its research function in support of resolving native title claims.

Research undertaken in performance of this function may result in the collection of personal information from publicly available sources and from unpublished materials. Obtaining consent to disclose personal information in NNTT research materials for NNTT mediation of native title applications is so onerous as not to be possible in some cases and not practicable in others.[118]

35.73 The NNTT suggested that the exception could be based on a similar exception under either: the ‘Collection’ principle in the model UPPs, which allows for the collection of personal information where it ‘is necessary for the establishment, exercise, or defence of a legal or equitable claim’; or s 8(2)(k) of the Privacy Act 1985 (Canada), which permits disclosure of personal information ‘for the purpose of researching or validating the claims, disputes or grievances of any of the aboriginal peoples of Canada’.[119]

ALRC’s view

35.74 One argument for exempting federal tribunals from the operation of the Privacy Act is that they have to rely heavily on exceptions to privacy principles in the course of their ordinary operations. That, however, does not provide a sufficient justification for exempting federal tribunals from the operation of the Act. As explained in Chapter 4, privacy principles are designed to be relatively high-level statements of policy objectives. This enables the principles to apply flexibly in a myriad of different information-handling contexts. It is to be expected that some agencies have to rely on the exceptions built into the principles in specified situations or in respect of certain conduct. In any case, federal tribunals currently rely on existing exceptions in the IPPs. Similar exceptions are retained in the model UPPs.[120]

35.75 The main argument in favour of exempting federal tribunals is that they perform similar functions to the courts and therefore should be exempt to the same extent as courts. Not all of the rationales that apply to the exemption of federal courts, however, apply to federal tribunals. The partial exemption of federal courts from the operation of the Privacy Act is based partly on the need to balance the principle of open justice with the interests of privacy. The principle of open justice, however, does not apply equally to all federal tribunals. The extent to which the principle applies to a particular tribunal depends on the nature of the tribunal’s jurisdiction and the tribunal’s operating environment. The principle of open justice also does not always apply equally to all proceedings before a particular tribunal. For example, some tribunals generally are required to hold hearings in public, but are required to hold particular types of hearings in private. They also may have a discretion as to whether to hold hearings in public or in private.

35.76 The partial exemption of federal courts also is based in part on the separation of powers in Chapter III of the Australian Constitution. This rationale does not apply to federal tribunals, which exercise executive rather than judicial power. Nevertheless, many tribunals have adjudicative functions that are similar to the judicial functions of courts.[121] The functions of a tribunal generally include: evaluating evidence; conducting hearings; defining or determining any legal rights; and in the context of administrative review, not confining its evidence to that used by the decision maker.[122] On this basis, there is a strong case for exempting court-substitute tribunals in relation to their adjudicative and review functions in order to maintain the integrity of their adjudicative and review processes.

35.77 The ALRC does not consider that exempting the federal tribunals in respect of their adjudicative functions would cover sufficiently the range of activities that ought to be exempt. For example, the AAT may conduct conferences with the parties or their representatives before the hearing, as well as ADR processes which are an integral part of the AAT’s review process. The NNTT also holds mediation conferences and other conferences in the course of an inquiry relating to native title claims. It is unclear whether the term ‘adjudicative functions’ or other similar terms would capture all of these activities, which are part of the dispute resolution process.

35.78 Exempting the AAT ‘in relation to activities undertaken for the purpose of carrying out its functions’[123] under its empowering legislation would be too wide a formulation. Arguably, all of the AAT activities, including those relating to its office administration, could be considered activities that are undertaken for the purpose of carrying out its functions.

35.79 Entities with like functions should be treated alike. As discussed above, federal courts should continue to be exempt from the operation of the Privacy Act, except when they are dealing with matters of an administrative nature. Federal tribunals whose primary functions involve dispute resolution, administrative review and disciplinary proceedings also should be exempt to the same extent.[124]

35.80 Since the basis for the exemption is the exercise of court-like functions by tribunals, the exemption only should apply to federal tribunals whose primary functions involve dispute resolution, administrative review and disciplinary applications, rather than to those whose main functions are to formulate and apply policy.

35.81 In Chapter 33, the ALRC recommends that the Privacy Act should be amended to set out in a schedule to the Act exemptions for specified, named agencies, organisations and entities. Where such agencies, organisations and entities are partially exempt, the schedule should specify the particular acts and practices that are exempt. In the interest of certainty, this schedule should list the specific tribunals, boards and commissions that are partially exempt and specify the extent of their exemption. The list would include, for example, the AAT, SSAT, MRT, RRT and the AIRC.

35.82 In Chapter 33, the ALRC also recommends that where an entity is exempt, completely or partially, from the operation of the Privacy Act, information-handling guidelines should be in place to ensure that personal information would be handled appropriately. The ALRC recommends that those federal tribunals, commissions and boards that are exempt partially from the operation of the Privacy Act should develop and publish information-handling guidelines that apply to their activities in respect of matters of a non-administrative nature.

Recommendation 35-1 The Privacy Act should be amended to provide that federal tribunals, boards and commissions whose primary functions involve dispute resolution, administrative review or disciplinary proceedings are exempt from the operation of the Act except in relation to an act done, or a practice engaged in, in respect of a matter of an administrative nature. The schedule to the Act setting out exemptions should list the specific tribunals, boards and commissions that are partially exempt and specify the extent of their exemption.

Recommendation 35-2 Those federal tribunals, commissions and boards that are partially exempt from the operation of the Privacy Act should develop and publish information-handling guidelines that apply to their activities in respect of matters of a non-administrative nature.

[44] M Groves and H Lee, Australian Administrative Law—Fundamentals, Principles and Doctrines (2007), 78; C Enright, Federal Administrative Law (2001), 33.

[45] Legislation Act 2001 (ACT) sch 1.

[46] Council of Australasian Tribunals, About the Council of Australasian Tribunals <www.coat.gov.au/
overview.htm> at 1 May 2008
.

[47] Council of Australasian Tribunals Inc, Constitution of the Council Of Australasian Tribunals Inc.

[48] M Allars, Introduction to Australian Administrative Law (1990), 312–313.

[49] Council of Australasian Tribunals, Register of Tribunals <www.coat.gov.au/register.htm> at 1 May 2008.

[50] For example, the Defence Force Discipline Remuneration Tribunal, the Defence Force Discipline Appeal Tribunal, the Federal Police Disciplinary Tribunal, the Repatriation Commission and the Pharmaceutical Benefits Remuneration Tribunal.

[51] R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254.

[52] Re Cram; Ex parte The Newcastle Wallsend Coal Company Pty Ltd (1987) 163 CLR 140, 149.

[53] A Hall, ‘Judicial Power, the Duality of Functions and the Administrative Appeals Tribunal’ (1994) 22 Federal Law Review 13, 55.

[54] Privacy Act 1988 (Cth) s 14, IPPs 10, 11; Administrative Appeals Tribunal, Submission PR 201, 20 February 2007; Social Security Appeals Tribunal, Submission PR 106, 15 January 2007.

[55] Privacy Act 1988 (Cth) s 14, IPP 11.1(a).

[56] Ibid s 14, IPPs 10.1(a), 11.1(b).

[57] Ibid s 14, IPPs 10.1(b), 11.1(c).

[58] Ibid s 14, IPPs 10.1(c), 11.1(d).

[59] Ibid s 14, IPPs 10.1(a), 11.1(e).

[60] Ibid s 14, IPP 10.1(e).

[61] Ibid s 7(1)(a)(i)(A), (b).

[62] The AFPC is an independent, statutory body that is responsible for setting and adjusting federal minimum wages: Workplace Relations Act 1996 (Cth) s 23.

[63] Ibid s 62; Australian Industrial Relations Commission, About the Commission <www.airc.gov.au> at 5 August 2007.

[64] Australian Industrial Relations Commission, About the Commission <www.airc.gov.au> at 5 August 2007.

[65] Workplace Relations Act 1996 (Cth) ss 111, 115.

[66] Administrative Appeals Tribunal, About the AAT <www.aat.gov.au/AboutTheAAT.htm> at 14 May 2008.

[67] Administrative Appeals Tribunal Act 1975 (Cth) s 35.

[68] Ibid s 35(2).

[69] Ibid s 39A(1).

[70] Ibid s 35AA.

[71] Ibid s 28.

[72] See, eg, Ibid ss 66, 66A.

[73] Australian Government Migration Review Tribunal and Refugee Review Tribunal, About the Tribunals <www.mrt-rrt.gov.au/about.asp> at 15 May 2008.

[74] Migration Act 1958 (Cth) s 365.

[75] Migration Review Tribunal and Refugee Review Tribunal, Submission PR 126, 16 January 2007.

[76] Migration Act 1958 (Cth) s 411. A ‘transitory person’ is a person who has been in Australia for 6 months or more: Migration Act 1958 (Cth) s 5.

[77] Migration Act 1958 (Cth) s 429.

[78] Ibid ss 378, 440.

[79] Australian Government Social Security Appeals Tribunal, Introduction to the SSAT <www.ssat.gov.au> at 15 May 2008.

[80]Social Security (Administration) Act 1999 (Cth) s 168.

[81] Ibid s 169.

[82] Ibid s 177.

[83] Ibid s 177.

[84] Ibid s 19.

[85] National Native Title Tribunal, About the Tribunal <www.nntt.gov.au/Pages/default.aspx> at 1 May 2008.

[86] Native Title Act 1993 (Cth) s 108.

[87] Ibid ss 149, 149A, 156.

[88] Ibid s 136E.

[89] Ibid ss 154, 154A.

[90] Ibid ss 136A, 136GC, 150.

[91] Ibid ss 136F, 136GD.

[92] Ibid ss 155.

[93] Ibid ss 162, 163, 163AA, 163A, 164.

[94] Australian Law Reform Commission, Review of Australian Privacy Law, DP 72 (2007), Question 32–1.

[95]Justice G Giudice, Submission PR 91, 15 January 2007.

[96] Australian Government Department of Employment and Workplace Relations, Submission PR 211, 27 February 2007.

[97] Office of the Privacy Commissioner, Submission PR 215, 28 February 2007.

[98] K Handscombe, Submission PR 89, 15 January 2007.

[99] Administrative Appeals Tribunal, Submission PR 201, 20 February 2007; Social Security Appeals Tribunal, Submission PR 106, 15 January 2007.

[100] Social Security Appeals Tribunal, Submission PR 106, 15 January 2007.

[101] Administrative Appeals Tribunal, Submission PR 201, 20 February 2007.

[102] Migration Review Tribunal and Refugee Review Tribunal, Submission PR 126, 16 January 2007.

[103] Office of the Privacy Commissioner, Submission PR 499, 20 December 2007.

[104] Australian Privacy Foundation, Submission PR 553, 2 January 2008; Cyberspace Law and Policy Centre UNSW, Submission PR 487, 19 December 2007.

[105] Public Interest Advocacy Centre, Submission PR 548, 26 December 2007.

[106] National Legal Aid, Submission PR 521, 21 December 2007.

[107] Privacy NSW, Submission PR 468, 14 December 2007.

[108] Confidential, Submission PR 377, 5 December 2007.

[109] Australian Bankers’ Association Inc, Submission PR 567, 11 February 2008.

[110] National Alternative Dispute Resolution Advisory Council, Submission PR 564, 23 January 2008.

[111] Administrative Appeals Tribunal, Submission PR 201, 20 February 2007.

[112] Ibid.

[113] Social Security Appeals Tribunal, Submission PR 106, 15 January 2007. In response to DP 72, the SSAT submitted that its previously stated view was predicated on the assumption that the Act would remain substantially the same. The SSAT submitted that, given the proposed UPPs, it would need to read the UPPs in light of the SSAT’s own legislative requirements and obligations, and may seek partial exemptions from the operation of specific UPPs: Social Security Appeals Tribunal, Submission PR 478, 17 December 2007.

[114] Migration Review Tribunal and Refugee Review Tribunal, Submission PR 126, 16 January 2007.

[115] Migration Review Tribunal and Refugee Review Tribunal, Submission PR 533, 21 December 2007.

[116] Administrative Appeals Tribunal, Submission PR 201, 20 February 2007; Migration Review Tribunal and Refugee Review Tribunal, Submission PR 126, 16 January 2007; Social Security Appeals Tribunal, Submission PR 106, 15 January 2007.

[117] Administrative Appeals Tribunal, Submission PR 201, 20 February 2007; Migration Review Tribunal and Refugee Review Tribunal, Submission PR 126, 16 January 2007.

[118] National Native Title Tribunal, Submission PR 402, 7 December 2007.

[119]Ibid.

[120] For example, the NNTT, where it is carrying out its statutory research functions, would be able to rely on the ‘required or authorised by or under law’ exceptions in the ‘Collection’ and ‘Use and Disclosure’ principles in the model UPPs.

[121] See R Creyke and J McMillan, Control of Government Action: Text, Cases & Commentary (2005), [3.2.28]–[3.2.29].

[122]Re Monger; Ex parte WMC Resources Pty Ltd [2002] WASCA 129, [76].

[123] Administrative Appeals Tribunal, Submission PR 201, 20 February 2007.

[124] The categorisation of tribunals used to frame the exemption is based on the definition of ‘tribunal’ in the Constitution of COAT, discussed above: Council of Australasian Tribunals Inc, Constitution of the Council Of Australasian Tribunals Inc.