The questions in these proceedings are first, the scope of Ms Galiatsatos' application to the Tribunal for administrative review of certain decisions made by the Legal Profession Admission Board (LPAB) and second, whether the Tribunal has jurisdiction to review those decisions.
[2]
The scope of the application
The LPAB administers the Student-at-Law examinations (Diploma in Law). Ms Galiatsatos was enrolled as a student in 2015. On 27 April 2016 she lodged an application for administrative review identifying two decisions made by the LPAB - one dated 13 November 2015 and the other dated 18 April 2016 - as being the decisions she was asking the Tribunal to review. In the application form, under the heading "Grounds for Application" Ms Galiatsatos refers to her "wrongful termination" from the course and to each of those letters. Both decisions were about her enrolment in the course.
The 13 November 2015 letter from Christopher Banks, Executive Officer of the LPAB, advised Ms Galiatsatos that her requests to re-enter the course had been granted subject to certain conditions. The 18 April 2016 letter, also from Mr Banks, advised Ms Galiatsatos that she had been excluded from the course because she had not complied with a direction from the LPAB to sit for Legal Ethics or another subject. I understand that Ms Galiatsatos intended to apply to the Tribunal for a review of each of those decisions.
Ms Galiatsatos did not expressly identify any other decisions in her application form as being the subject of her application. But, under the heading "Grounds for Application" she refers to a decision to remove what she refers to as "open access information" from the LPAB's website and to two applications she made to the LPAB under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act):
In a recent announcement on page 5 of the LPAB Diploma in Law Information Handbook (Winter 2016 session), the LPAB plan to remove what has been for many years open access information of Past Exam Papers & Examiners Comments from the LPAB website at the end of exam period in September 2016 without any justification of an overriding public interest against disclosure. (See also previous GIPA application requests dated 11 November 2015 and 6 April 2016 and LPAB 2013/2014 Annual Report) which also relates to why keeping Examination Papers as open access information is so vital.
I understand from this information and from Ms Galiatsatos' oral submissions at the hearing, that she is also applying for a review of the decision by the LPAB to remove all past exam papers from the LPAB website at the end of the exam period in September 2016.
It is not clear whether Ms Galiatsatos is also applying for a review of either of the LPAB's decisions in response to her applications under the GIPA Act. I have decided to treat the LPAB's response to Ms Galiatsatos' second application under the GIPA Act as an application for review of an administrative decision. I have decided not to treat the LPAB's response to Ms Galiatsatos' second application under the GIPA Act as an application for review of an administrative decision. My reasons are set out below.
The second application under the GIPA Act was made on 6 April 2016 when Ms Galiatsatos wrote to the LPAB purporting to make a "formal access application". The following day a representative of the LPAB returned her letter and money order and emailed Ms Galiatsatos to advise her that her application needed to be made to the NSW Department of Justice. The email contained a link to the Department's website.
Four days later Ms Galiatsatos responded to this email saying that she could see no reason why the LPAB had rejected her application especially as they have all the information she is requesting. She stated that unless the LPAB could show her a direct source of information telling her that she could not apply direct to the LPAB she would be forced to take action through the Tribunal. On the basis of this information I have decided to treat the LPAB's response to Ms Galiatsatos' second application under the GIPA Act as an application for review of an administrative decision.
Ms Galiatsatos made the first application under the GIPA Act in a letter dated 11 November 2015. She requested that her examination answer booklets from the Evidence exam in September 2015 be scanned and emailed to her. Ms Galiatsatos stated that if that request was not complied with within 20 working days, she would refer it to the Tribunal for review.
Ms Galiatsatos did not provide to the Tribunal the LPAB's response, if any, to that application. But the bundle attached to her application to the Tribunal included a copy of her examination answer booklets from the Evidence exam in 2015. In those circumstances, I have decided not to treat any response by the LPAB to Ms Galiatsatos' first application under the GIPA Act as an application for review of an administrative decision.
In summary, based on the information in the application form, the material attached to that application and the information Ms Galiatsatos provided at the hearing, I understand her application to be for:
1. an administrative review of the decision communicated to her by letter of 13 November 2015 to grant her request to re-enter the course subject to conditions;
2. an administrative review of the decision communicated to her by letter of 18 April 2016 to exclude her from the course;
3. an administrative review of the decision of the LPAG to remove all past exam papers from the website at the end of the exam period in September 2016; and
4. an administrative review of the decision communicated to her by email of 7 April 2016 that any application under the GIPA Act should be directed to the Department of Justice.
[3]
Legal principles
The Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) sets out the Tribunal's jurisdiction. One of those jurisdictions is the "administrative review jurisdiction": NCAT Act, s 29(2)(b). Ms Galiatsatos' application was made on the form that relates to that jurisdiction.
The Tribunal has administrative review jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW): Civil and Administrative Tribunal Act 2013 (NSW), s 30, Administrative Decisions Review Act, s 9. For example, s 100 of the GIPA Act gives a person the right to apply to the Tribunal for a review of a "reviewable decision". "Reviewable decisions" in respect of access applications are set out in s 80 of the GIPA Act.
[4]
Re-entry to the course subject to conditions
There is nothing in the GIPA Act or any other enabling legislation which gives the Tribunal power to review a decision of the LPAB under the Administrative Decisions Review Act to grant an application to re-enter the course on certain conditions. Consequently, the Tribunal has no administrative review jurisdiction in relation to that decision.
[5]
Exclusion from the course
There is nothing in the GIPA Act or any other enabling legislation which gives the Tribunal power to review a decision of the LPAB under the Administrative Decisions Review Act to exclude a person from the course. Consequently, the Tribunal has no administrative review jurisdiction in relation to that decision.
[6]
Removal of past exam papers from website
Ms Galiatsatos states in her application that the LPAB plans to remove "open access information" of past exam papers and examiners' comments from the LPAB website without any justification of an overriding public interest against disclosure.
Part 2 of the GIPA Act is headed, "OPEN GOVERNMENT INFORMATION-GENERAL PRINCIPLES". Section 6(1) provides that:
(1) An agency must make the government information that is its
"open access information" publicly available unless there is an overriding public interest against disclosure of the information.
Under s 6(5), an agency "must keep a record of the open access information (if any) that it does not make publicly available on the basis of an overriding public interest against disclosure".
Section 18, which is in Part 3 headed "Open Access Information" defines open access information as follows:
18 What constitutes open access information
The following government information held by an agency is the agency's
"open access information" that is required to be made publicly available by the agency under section 6 (Mandatory proactive release of certain government information):
(a) the agency's current agency information guide (see Division 2),
(b) information about the agency contained in any document tabled in Parliament by or on behalf of the agency, other than any document tabled by order of either House of Parliament,
(c) the agency's policy documents (see Division 3),
(d) the agency's disclosure log of access applications (see Division 4),
(e) the agency's register of government contracts (see Division 5),
(f) the agency's record (kept under section 6) of the open access information (if any) that it does not make publicly available on the basis of an overriding public interest against disclosure,
(g) such other government information as may be prescribed by the regulations as open access information.
There is no need for the Tribunal to decide whether the past exam papers and examiners' comments come within the definition of open access information, because neither the GIPA Act, nor any other enabling legislation, gives the Tribunal power to review a decision made by an agency about open access information.
[7]
Re-direction to Department of Justice
I have set out the background to the second GIPA application at [7] and [8] above.
Under the GIPA Act the Tribunal has administrative review jurisdiction over certain decisions made by an "agency": GIPA Act, s 100. An "agency" is defined in s 4 to mean:
(a) a Public Service agency,
(b) a Minister (including a person employed by a Minister under Part 2 of the Members of Parliament Staff Act 2013),
(c) a public authority,
(d) a public office,
(e) a local authority,
(f) a court,
(g) a person or entity that is an agency pursuant to regulations under clause 5 of Schedule 4.
The LPAB does not come within any of the descriptions in s 4 (b) - (g), nor is it a "Public Service agency". A "Public Service agency" means a Public Service agency under the Government Sector Employment Act 2013 (NSW): GIPA Act, Sch 1, cl 4. In s 3, the Government Sector Employment Act defines "Public Service agency" to mean:
(a) a Department, or
(b) a Public Service executive agency (being an agency related to a Department), or
(c) a separate Public Service agency.
Departments are defined in Schedule 1, Part 1 of the Government Sector Employment Act. The Department of Justice is on that list; the LPAB is not. The LPAB is not a Public Service executive agency or a separate agency because it is not listed in Part 2 or Part 3 of Schedule 1 of the Government Sector Employment Act.
Under the GIPA legislation the LPAB is a "subsidiary agency". It is taken to be part the NSW Department of Justice: GIPA Act, Sch 4, cl 6; Government Information (Public Access) Regulation 2009 (NSW), Sch 3, cl 12.
Because the LPAB is not an "agency" as defined in the GIPA Act, decisions made by that body do not come within the Tribunal's administrative review jurisdiction. It follows that the Tribunal has no jurisdiction to review its decision directing Ms Galiatsatos to apply to the Department of Justice.
[8]
Orders
The applicant's applications for administrative review of the following decisions made by the Legal Profession Admission Board are dismissed:
(1) the decision communicated to the applicant by letter of 13 November 2015 to grant her request to re-enter the course subject to conditions;
(2) the decision communicated to the applicant by letter of 18 April 2016 to exclude her from the course;
(3) the decision to remove all past exam papers from the Legal Profession Admission Board's website at the end of the exam period in September 2016; and
(4) the decision communicated to the applicant by email of 7 April 2016 that any application under the Government Information (Public Access) Act 2009 (NSW) should be directed to the Department of Justice.
[9]
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: 05 July 2016
Parties
Applicant/Plaintiff:
Galiatsatos
Respondent/Defendant:
Legal Profession Admission Board
Legislation Cited (5)
Government Information (Public Access) Regulation 2009(NSW)