Commentary
S 10 – Exemption for courts and tribunals
- This decision helps illustrate when an organisation may be acting in a ‘judicial or quasi-judicial’ capacity by espousing the following factors:
- An organisation may be acting in a ‘judicial or quasi-judicial’ function where all of the following are performed by the organisation (from the High Court’s decision in R v Trade Practices Tribunal; ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8):
- an inquiry concerning the law and facts;
- a determination of the facts;
- an application of the facts to the law; and
- a decision which entitles and obliges persons involved to observance of the rights and obligations in the law.
- It does not matter whether members of the organisation are classified, in a technical sense, as judicial or non-judicial officers, provided they are carrying out the work of an organisation’s judicial or quasi-judicial functions.
- An organisation may be acting in a ‘judicial or quasi-judicial’ function where all of the following are performed by the organisation (from the High Court’s decision in R v Trade Practices Tribunal; ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8):
Facts and decision
- In 2011, the Harrisons, husband and wife, wrote to the Building Commission (which later became the Victorian Building Authority (VBA)) and Building Practitioners Board (BPB) complaining about five practitioners who they had hired to carry out building work at their premises. The BPB commenced an investigation against all five, and three were found guilty of various offences and sanctioned under the Building Act 1993 (Vic.) (Building Act).
- The Harrisons made three separate privacy complaints against the VBA and BPB. This case primarily centres around two of those complaints, being the Harrison’s allegations that the BPB interfered with IPP 2.1 when it disclosed their personal information to one of the practitioners’ solicitor (S). The other complaints are dealt with in the case note Harrison v Victorian Building Authority [2017] VCAT 108 (see case note).
s 10 – Exemption for courts and tribunals
Submission
- The BPB sought for these complaints to be summarily dismissed, alleging that when it disclosed the Harrisons’ personal information to S, it was acting in its quasi-judicial function and therefore exempt from complying with IPP 2.1 because of s 10 of the PDP Act.
- BPB highlighted the following factors to indicate that it was a tribunal with ‘quasi-judicial functions’:
- the Building Act empowered the BPB with a range of decision-making powers, including: the ability to register applicants as building practitioners, holding and determining inquiries into building practitioners’ conduct, holding and determining inquiries into building practitioners’ physical or mental disability;
- the Building Act established a process for the BPB to hold its inquiries;
- the Building Act bound the BPB to the rules of natural justice; and
- the Building Act empowered the BPB to make a range of findings about a practitioner and impose fines or sanctions, including the ability to suspend or cancel a license, or impose a fine.
Decision
- VCAT agreed that BPB was subject to the exception in s 10 of the PDP Act when it disclosed the Harrisons’ personal information, largely agreeing with BPB’s position, and therefore summarily dismissed the complaints.