I just want to jump in on the current commissioner's assertion that the tribunal would add a fourth layer in the process. I think it's important to understand the process now and how the tribunal would change it.
The process now is that the Privacy Commissioner is an ombudsperson. They actually have investigative powers but no decision-making powers, so what happens is that the commissioner issues some findings. A company can choose whether or not to undertake the recommendations based on the findings. If they do not, the commissioner's only option is to take that company to court. When they take that company to court, the court gives the commissioner no deference. It's like any plainant taking a company to court. They have to make their case. As my colleague suggested, many times the commissioner loses those cases, as most recently happened in 2023 with the case against Facebook. Obviously you can appeal that decision to the Federal Court of Appeal and eventually to the Supreme Court. That's the current process.
This new process, first of all, gives the commissioner decision-making powers. The commissioner can issue compliance orders—which is something that it can't do now—which actually compel an organization to do or not do something, and can recommend AMPs. Those decisions can be appealed to the tribunal, but once the tribunal makes a decision.... Actually, even before that, the tribunal has to actually defer to the OPC on many questions of fact and questions of law.
That's the first difference with a court, which wouldn't do that. The second difference is that once the tribunal makes that decision, the decision is final. The decision cannot be appealed. The only recourse possible is a judicial review.
A judicial review is not the same thing as an appeal. An appeal is a substantive reconsideration of the merits of a case. With a judicial review, a court—and in this case it would be the Federal Court—simply decides whether or not the tribunal acted reasonably. It's not a substantive reconsideration of the case, hence it's not an appeal, so the tribunal's decision is final. That means it's a shorter process; it's a quicker process and it's a less expensive process.