DNM has the right to appeal from an "internally appealable decision" of the Tribunal on a question of law: NCAT Act, s 80(1) and s 32. The Tribunal, constituted as the Appeal Panel, has internal appeal jurisdiction over "any decision made by the Tribunal in proceedings for a … administrative review decision, and any decision made by a registrar of a kind that is declared by this Act or the procedural rules to be internally appealable …": NCAT Act, s 32.
First we will address the grounds of appeal which the Appeal Panel does not have power to consider. We will go on to address the following grounds of appeal: that the Tribunal gave inadequate reasons for its decision, that the Tribunal's direction that the Ombudsman did not have to file copies of the requested information was incorrect and that the Tribunal misconstrued the definition of excluded information.
[2]
Grounds of appeal which the Appeal Panel does not have power to consider
DNM appealed on several grounds which the Appeal Panel does not have power to consider because they are not material to the Tribunal's ultimate decision that his application was invalid. An appeal cannot be made from a comment, observation or criticism that is not material to the decision. In brief, the grounds which we do not have power to consider are that:
1. the Tribunal failed to comply with its reporting function pursuant to s 11 of the Independent Commission Against Corruption Act 1988 (NSW) in that it failed to notify ICAC of possible corrupt conduct by the respondent agency in these proceedings;
2. the Tribunal failed to provide reasons for its decision to use the initials DNM instead of initials used in previous cases;
3. that the Tribunal was broadly correct, but made some errors when it said at paragraph 14 that the PID Act is "intended to protect, amongst other things, public servants whistle-blowers in New South Wales;"
4. that the Tribunal criticised DNM for making complaints about the conduct of the employees of the NSW Ombudsman; and
5. that the decision goes against democratic principles or good government.
[3]
Inadequate reasons
According to DNM, the Tribunal gave inadequate reasons for concluding that "a number of matters which DNM raised in his written arguments" were "not central to the issue of whether or not his access application sought access to excluded information." (See decision at [42]).
The Tribunal gave detailed reasons at [43] - [45] for rejecting DNM's submissions about the consequences that should flow from non-compliance by the Ombudsman with the Tribunal's timetable and from assertions about the honesty and integrity of the legal representative for the Ombudsman. Detailed reasons need not be given for other matters which are not central to the issue of whether or not the access application sought excluded information: Bar-Mordecai v Rotman & Ors [2000] NSWCA 123 at [212].
[4]
Failure to view the information
DNM submitted that the Tribunal should determine a claim by an agency that information is excluded information by considering the information to which access has been sought. We note that on 27 February 2018, the Tribunal directed the parties and the Information Commissioner to file and serve certain material. In one of the notes to those directions, the Tribunal stated that:
DNM requested the Tribunal to order the respondent to provide a schedule of documents. The Tribunal declined to do so, because the issue is whether the access application is valid, and the proceedings do not concern a dispute about access to information in documents.
DNM characterised this ground of appeal as offending against "judicial comity" and cited several cases where he said the Tribunal had assessed the information before reaching a decision including Fraud Detection and Reporting Pty Ltd v Department of Justice [2018] NSWCATAD 63 at [54] - [62]. The doctrine of judicial comity is that questions of law should usually be determined in the same way by the Tribunal at first instance unless the member is convinced that the decision is wrong: La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204.
Rather than offending against "judicial comity", the substance of this ground of appeal is that the Tribunal's failure to direct the Ombudsman to file that material was legally incorrect. That decision is an interlocutory decision and DNM would need the Appeal Panel's leave before it could be addressed: NCAT Act, s 80(2)(a). Even if we gave leave, this ground of appeal would fail because the nature of the requested information was not in issue. DNM's application was for "all records your office holds relating to the monitoring exercise undertaken by your office as communicated by letter of 24 June 2014." In the words of the Deputy Ombudsman's 24 June 2014 letter, the Ombudsman intended to "monitor the manner in which [the agency] assesses and handles PIDS and purported PIDs made to it." Viewing that information would not have assisted the Tribunal to decide whether that information related to the Ombudsman's excluded information functions.
[5]
Statutory construction
DNM submitted that the Tribunal was wrong to interpret the reporting function as including the separate function of monitoring the exercise of functions under the Public Interest Disclosures Act and compliance with that Act by public authorities. The main reasons that DNM maintained that the Tribunal's interpretation was incorrect were that:
1. the Public Interest Disclosure Act is beneficial legislation and should be given a wide and liberal interpretation to benefit whistle-blowers like him;
2. the phrase "to monitor and provide reports" gives the Ombudsman two separate functions - a monitoring function and a reporting function - and the monitoring function is not sufficiently linked to the reporting function;
3. the phrase "monitoring and reporting function" is not used in the legislation. If the Parliament had intended to indicate that there was a "monitoring and reporting function" then it would have used that phrase; and
4. extrinsic material that he provided was not taken into account.
[6]
Consideration of statutory construction grounds of appeal
[7]
Identification of the issue
The Tribunal engaged in a two step reasoning process. First, the Tribunal identified the issue as being whether the PID monitoring and reporting function in 6B(1)(e) was a single function or two separate functions. Having found that it was a single function, the Tribunal went on to determine whether the requested information related to the "reporting function" and was therefore excluded information.
In support of his submission that there are two separate functions, DNM submitted that the monitoring might be conducted for a purpose other than providing monitoring reports. In his view, in this case, there was no link between the monitoring and reporting functions because there was no evidence that any information obtained from the 2014 monitoring exercise was included in a monitoring report.
DNM expressed this ground of appeal in another way when he said that the question of whether the use of the word "and" in the phrase "to monitor and provide reports (monitoring reports). . . " is conjunctive or disjunctive was the wrong question. According to DNM, the correct question is whether there was a link between the functions of monitoring and reporting in the 2014 monitoring exercise.
In our view, the Tribunal should have identified the issue more broadly by asking whether the requested information relates the Ombudsman's excluded information functions. We note that the Information Commissioner characterised the issue in this way in their submission 15 January 2019 at [36]. In this case, that broad issue was whether the information DNM requested relates to the Ombudsman's complaint handling, investigative and reporting functions (including any functions of the Ombudsman under the Community Services (Complaints, Reviews and Monitoring) Act 1993). Given our conclusion, we must determine whether, although the Tribunal asked itself an unnecessary question, it nevertheless came to the correct conclusion. In addressing that question, we will respond to several of DNM's grounds of appeal.
[8]
Meaning of 'related to'
At [56] the Tribunal gave the words "relates to" any function in the definition of "excluded information" their "usual wide meaning." While that expression has been held to be "of broad import", the context will determine the matters to which it extends: O'Grady v Northern Queensland Co Ltd [1990] HCA 16; (1990) 169 CLR 356 at 374; Workers' Compensation Board of Queensland v Technical Products Pty Ltd [1998] HCA 49; (1988) 165 CLR 642 at 653. As French CJ and Hayne J held in Travelex Ltd v Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510 at [25], the context includes both the legislative context and the factual context:
It may also be accepted that 'the subject matter of the enquiry, the legislative history, and the facts of the case' are all matters that will bear upon the judgment of what relationship must be shown in order to conclude that . . . (there is the necessary degree of connection) (Words in brackets added.)
[9]
The legislative context
Parliament has expressed its intention that the GIPA Act should be interpreted and applied so as to further the following object in s 3(1):
(1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:
(a) authorising and encouraging the proactive public release of government information by agencies, and
(b) giving members of the public an enforceable right to access government information, and
(c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
A construction of a provision that would promote the purpose or object underlying the Act "shall be preferred to a construction that would not promote that purpose or object": Interpretation Act 1987 (NSW), s 33. The Court of Appeal discussed the role of legislative purpose in construing legislation in Victims Compensation Fund Corporation v Brown [2002] NSWCA 155; (2002) 54 NSWLR 668. At [9] Spigelman CJ referred to the following passage from a decision of the Supreme Court of the United States - Rodriguez v United States [1987] USSC 36; 480 US 522 (1987) at 525-526:
… it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute's primary objective must be the law.
The primary objective of the GIPA Act may be seen to be giving members of the public an enforceable right to access government information. But the GIPA Act has other purposes including restricting or prohibiting access when there is an overriding public interest against disclosure. In this case, that public interest against disclosure is the interest in delivering responsible and effective government.
The Tribunal gave two reasons for not relying on any of the extrinsic materials put forward by DNM including parliamentary speeches and academic articles. The first was because they related to the GIPA Act, not the Public Interest Disclosures Act and the second was because there was no "good reason" to resort to that material: Osborne v Commissioner of Police, NSW Police Service [2000] NSWADTAP 10 at [36]. The circumstances in which extrinsic material may be used in the interpretation of legislation is set out in s 34 of the Interpretation Act:
(1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or
(b) to determine the meaning of the provision:
(i) if the provision is ambiguous or obscure, or
(ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.
DNM submitted that there is an element of uncertainty or ambiguity in the assertions made by the Ombudsman and therefore it is legitimate to resort to extrinsic material. We understand DNM to be submitting that the words in the relevant statutory provisions are ambiguous or obscure, rather than that the Ombudsman's assertions are ambiguous or obscure.
The threshold question under s 33 of the Interpretation Act is whether any extrinsic material is "capable of assisting in the ascertainment of the meaning of the provision" - that is, the definition of excluded information. DNM did not identify to the Appeal Panel the extrinsic material on which he relied in the Tribunal proceedings and which met that test. In those circumstances we are unable to determine whether the Tribunal may have erred in failing to rely on that material.
DNM submitted that the Tribunal erred by not giving the definition of excluded information a 'beneficial' interpretation. A beneficial interpretation is a 'fair, large and liberal' interpretation rather than one which is 'literal or technical': IW v The City of Perth (1997) 191 CLR 1 at 11. Section 5 of the GIPA Act contains a presumption in favour of disclosing government information unless there is an overriding public interest against disclosure. It is apparent that the GIPA Act prioritises disclosure except in certain specified circumstances. The provisions relating to "excluded information" are "excepting provisions". According to Pearce and Geddes, such provisions should be interpreted carefully so as not to destroy the balance: Pearce and Geddes, Statutory Interpretation in Australia (8th ed. 2014) at 364 [9.5]. As the relevant provisions in this case are "excepting provisions", the Tribunal did not err if it failed to give them a 'beneficial' interpretation.
Another aspect of the legislative context is an understanding of the Ombudsman's functions and which of those functions are included in the Ombudsman's excluded information functions. The Ombudsman's functions include:
1. dealing with complaints about the conduct of NSW government agencies: Ombudsman Act, Part 3;
2. preventing and responding to serious incidents involving people with disabilities living in supported group accommodation: Ombudsman Act, Part 3C;
3. overseeing and monitoring the investigation of and response to, child abuse allegations and convictions against employees of certain agencies: Ombudsman Act, Part 3A;
4. monitoring, assessing and reporting on certain Aboriginal programs: Ombudsman Act, Part 3B;
5. dealing with complaints about organisations and individuals who provide community services: Community Services (Complaints, Reviews and Monitoring) Act 1993; and
6. overseeing and promoting public awareness and understanding of the Public Interest Disclosures Act and monitoring its operation.
The Ombudsman is sometimes referred to as watchdog. The Ombudsman has several powers to assist him in performing that role including what may be described as information gathering powers, such as monitoring. Those information gathering powers, however, are not ends in and of themselves. The Ombudsman gathers information in order to carry out various functions such as dealing with complaints made about the operation of various agencies, in investigating whether an agency has performed certain functions properly or in the process of assembling material for the making of a report to an agency, Minister or Parliament.
The way "excluded information" is defined for agencies other than the Ombudsman is also part of the context in which the relevant provisions must be considered. Under Schedule 2 of the GIPA Act, various kinds of information is defined as "excluded information." That information is listed under the headings: judicial and prosecutorial information, complaints handling and investigative information, competitive and market sensitive information and other information. In the category of complaints handling and investigative information, various functions of twenty agencies are listed. The functions of each agency are described using terms such as "complaint handling", "investigative," "reporting," "audit", "operational auditing", "review", "inspection", "complaints resolution", "dispute resolution", "corruption prevention" and "inquiry".
These terms are generic descriptions of various agency functions. Rather than list each statutory function separately, the legislature has described them in general terms. Many of the words, such as 'auditing', 'review', 'inspection', and 'investigative' can be categorised as information gathering powers. Although the word 'monitoring' does not appear in the list, it is also a kind of information gathering power.
[10]
Factual context
DNM emphasised three "facts": that the 2014 letter from the Deputy Ombudsman explaining the decision to initiate the monitoring exercise does not mention any monitoring report; that there is no evidence of a report ever having been produced and that there is no reference to the monitoring exercise in the relevant annual report. In the submission to the Tribunal below dated 20 March 2018, the Ombudsman stated that the annual monitoring reports are publicly available on the Ombudsman's website.
The Tribunal did not make express findings about these matters, but our understanding, from the reasons for decision, is that the requested information was confined to the information gathered as a result of the monitoring exercise. The full text of the provision we have referred to as the "PID monitoring and reporting function" is "to monitor and provide reports (monitoring reports) to Parliament on the exercise of functions under this Act and compliance with this Act by public authorities (other than investigating authorities in respect of their functions as investigating authorities)".
[11]
Conclusion
The issue for the Tribunal was whether the information DNM requested relates to the Ombudsman's complaint handling, investigative and reporting functions. The requested information was the information obtained as a result of monitoring the manner in which an agency assesses and handles PIDS and purported PIDs made to it. It was obtained pursuant to the Ombudsman's PID monitoring and reporting function.
The statutory purpose of the definition of excluded information is to restrict or prohibit access to government information when there is an overriding public interest against disclosure such as the public interest in delivering responsible and effective government.
The "complaint handling, investigative and reporting" functions are generic descriptions. When the Ombudsman monitors compliance with legislation by public authorities, he is gathering information to ensure that the public authority is fulfilling its functions. That information is excluded information because it is sufficiently related to Ombudsman's "complaint handling, investigative and reporting functions."
Thus, in our view, the Tribunal was correct to conclude that this information "relates to" the Ombudsman's complaint handling, investigative and reporting functions
[12]
Should the Ombudsman pay DNM's costs?
DNM applied for costs of the appeal on the basis that the notion that there is a single function of monitoring and reporting is a fabrication. He also relied on the fact that the Ombudsman had missed certain deadlines in filing material before the Tribunal as a basis for seeking costs. He said that the Ombudsman had not been a model litigant and is therefore liable for his costs.
As he was not represented by a lawyer, DNM only applied for payment of the costs of the fee for filing the appeal. The Ombudsman opposed any order for costs on the basis that there had been no fabrication as suggested by DNM.
The general rule is that each party is to pay their own costs: NCAT Act, s 60(1). The Tribunal may award costs "only if it is satisfied that there are special circumstances warranting an award of costs": NCAT Act, s 60(3). Costs are not awarded to punish a party - they are compensatory: Latoudis v Casey (1990) 170 CLR 534 at 543; Oshlack v Richmond River Council (1998) 193 CLR 72 at 97. Even if there was some unnecessary delay because of the late filing of documents by the Ombudsman, DNM did not incur any legal costs as a result of that delay or as a result of anything else the Ombudsman has done or did not do after he filed the application. The application for costs is refused.
[13]
Orders
1. The appeal is dismissed.
2. DNM's application for costs is refused.
[14]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 03 April 2019
The Ombudsman decided that DNM's application for information under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) was invalid because it was an application for "excluded information": GIPA Act, s 43. The Tribunal affirmed that decision and DNM has appealed to the Appeal Panel.
Information held by the Ombudsman is "excluded information" if it "relates to" the Ombudsman's "complaint handling, investigative and reporting functions (including any functions of the Ombudsman under the Community Services (Complaints, Reviews and Monitoring) Act 1993)": GIPA Act, Sch 2, cl 2. We will refer to these functions collectively as the "Ombudsman's' excluded information functions."
Under s 6B(1)(e) of the Public Interest Disclosures Act 1994 (NSW) the Ombudsman has the following function:
"to monitor and provide reports (monitoring reports) to Parliament on the exercise of functions under this Act and compliance with this Act by public authorities (other than investigating authorities in respect of their functions as investigating authorities)"
An issue addressed by the Tribunal was whether this provision confers one function on the Ombudsman or two separate functions - a monitoring function and a reporting function. The Tribunal found that s 6B(1)(e) confers a single function under which the Ombudsman is empowered to monitor and report. Without determining that issue, we will refer to this provision as conferring the "PID monitoring and reporting function."
DNM's application for information under the GIPA Act was prompted by a letter he received from the Deputy Ombudsman dated 24 June 2014. That letter referred to several public interest disclosures (PIDs), complaints and requests that DNM had made to a public sector agency. The Deputy Ombudsman noted that the agency had spent considerable time and resources responding to those disclosures. He advised DNM that the Ombudsman would be exercising its "monitoring power" to monitor the manner in which that agency assesses and handles PIDs and purported PIDs made to it. The relevant parts of the 24 June 2014 letter, with the details of the agency deleted, are set out below:
On 19 June 2014, this office received a letter from [Name, title and agency], requesting advice regarding the handling and assessing of reports purporting to be PIDs made to [the agency], primarily by you. [Name] has advised me that, to date, you have lodged 43 PIDs with [the agency]. In addition you have made around 75 requests for information and complaints covering a wide range of topics. You have also made complaints to a number of external bodies including this office, the Information and Privacy Commissioner, State Records and the Office of the Legal Services Commissioner. [Name] indicated that [the agency] has spent a significant amount of time and resources responding to these reports, complaints and requests for information. He states that the impact upon [the agency] and staff has been significant and, in his view, out of proportion to any public benefit gained from your contacts.
Given this, I felt that it was appropriate for this office to exercise its monitoring power under section 6B(1)(e) of the Public Interest Disclosures Act 1994 and monitor the manner in which [the agency] assesses and handles PIDS and purported PIDs made to it. I should note that we are not exercising this power as a result of any concerns regarding wrong conduct or maladministration by' [the agency] in the processing, and handling of reports or PIDs.
I have attached a copy of my letter to [Name] setting out how we intend to monitor the reports received by [the agency]. [The agency] will maintain responsibility for handling the reports made by you and any others to, it. You should continue to communicate with [the agency] in relation to the reports that you make to it.
On 11 September 2017, DNM applied to the Ombudsman for access to the following information:
All records your office holds relating to the monitoring exercise undertaken by your office as communicated by letter of 24 June 2014.
The issue before the Tribunal was one of statutory construction. Does the requested information relate to an excluded information function: Watson v NSW Trustee and Guardian [2015] NSWCATAD 139 at [11]. The Tribunal found that it did. Consequently, DNM's application was invalid.
The issue on appeal is whether the Tribunal made any of the errors of law identified by DNM in reaching that conclusion. For the reasons we give below, none of the grounds of appeal discloses an error of law, nor does any ground justify granting leave to appeal on grounds other than a question of law.