Case: Attorney-General v Breckler [1999] HCA 28 ; (1999) 197 CLR 83 
Outcome: followed
applicant submitted that s 37 does not authorise the Tribunal to determine the rights and liabilities of the parties by the application of the law to determined facts. Rather, it empowers the Tribunal to exercise afresh, discretionary powers that the applicant in question had. By that structure, the Tribunal does not exercise the judicial power of the Commonwealth: Attorney-General v Breckler [1999] HCA 28 ; (1999) 197 CLR 83. In order, therefore, for the Tribunal to be able to substitute its decision, it was necessary for it to identify a discretion, which the applicant had exercised, which was not 'fair and reasonable' and which the Tribunal could then re-exercise. The applicant pointed to the Tribunal's reasoning by reference to the following extract from the Tribunal's Review Determination and Reasons: 'The Tribunal notes that the Trustee has power to pay a benefit to the Complainant under its compromise power in rules 9.7(d) of the 1995 Trust Deed and 10.7(d) of the 2000 Trust Deed and the relevant state's Trustee Act.' The reasoning was flawed, so the submission went, as was the Tribunal's consequential determination that it could order the applicant to pay the respondent $380,000. Clause 9.7 of the 1995 Trust Deed provided: ' Trustee's Powers 9.7 The Trustee may do anything it considers appropriate to administer the Fund and comply with Superannuation Law, including: (a) giving receipts and discharges; (b) conducting and settling legal proceedings; (c) referring claims to arbitration; (d) compromising any claim; (e) giving any guarantee or indemnity; (f) insuring any risks; (g) acting as an underwriter; (h) making rules for rounding off contributions and benefits; (i) providing for and transferring liability for any tax; (j) electing to be bound by any legislation.' The real issue in the context of these grounds of appeal is whether the respondent's claim is a claim against the Fund or a claim against the applicant. If it is a claim against the Fund, then the applicant is empowered, but not obliged, to compromise it pursuant to cl 10.7(d) of the 2000 Trust Deed. A discretion is involved and the exercise of that discretion by the applicant, as trustee, is within the Tribunal's jurisdiction of review without involving the Tribunal in the exercise of judicial power. As was said in the joint judgment (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) in Breckler at [24]: 'The limitation of the grounds of complaint to one that the decision was unfair or unreasonable suggests that what is involved is a complaint as to the exercise by the trustee of a discretion rather than the discharge of duties, for example to distribute to those answering specified criteria.' To like effect, Kirby J said at [69]: 'The majority of the Full Court upheld the conclusion of the primary judge that the Tribunal's jurisdiction was confined to the review of discretionary decisions. Only in discretionary cases would questions as to the unfairness or unreasonableness of the decision under review arise for the Tribunal's determination. Upon this issue the dissenting judge reached the same conclusion. He relied on the fact that "[i]n the case of non-discretionary decisions the Tribunal is denied that ability [of determining whether or not the decision is unfair or unreasonable] by s 37(5)". That is the subsection which forbids the Tribunal from doing "anything ... that would be contrary to law, to the governing rules of the fund concerned and, if a contract of insurance between an insurer and trustee is involved, to the terms of the contract". Having established that the jurisdiction of the Tribunal was so confined to functions arguably apt to a non-judicial body engaged in broad evaluation of merits (as distinct from the determination of purely legal rights) the point of difference between the majority and dissentient in the Full Court was reached.' On the other hand, if it is a claim against the applicant then, on my view of the proper construction of cl 10.7(d) of the 2000 Trust Deed, it is irrelevant to the source of the applicant's power to compromise the claim. However, the Tribunal submitted that the following considerations are critical: (a) As the High Court pointed out in Breckler , the Tribunal exercises a jurisdiction to which entities choose to subscribe, in return for, inter alia , preferential taxation treatment. (b) It has a place within a complex regulatory scheme over superannuation entities, and although its review function is independent, it is, for example, supplied with staff by the Australian Securities and Investment Commission ('ASIC'): see subs 62(2) of the Complaints Act. (c) Its secrecy provisions have an express exemption for disclosure of information where the Tribunal is requested to do so by ASIC or APRA: subs 63(3) of the Complaints Act. (d) Sections 64 and 64A of the Complaints Act impose statutory obligations of notification to ASIC and APRA on the Tribunal.