The applicant seeks review of a decision by the New South Wales Police Force ("NSWPF") that an access application he made under the Government Information (Public Access) Act 2009 (NSW) ("GIPA Act) was invalid because he had not paid the fee required by s 41(1)(c) of the GIPA Act.
[2]
Background
On 28 February 2020, the applicant lodged an access application under s 41 of the GIPA Act with the NSWPF.
On 2 March 2020, the NSWPF notified the applicant that the access application was invalid because it was not accompanied by payment of a fee of $30 as required by s 41(1)(c) of the GIPA Act ("Decision").
On 8 April 2020, the applicant requested that the NSWPF waive the $30 fee pursuant to s 127 of the GIPA Act.
On 9 April 2020, the NSWPF notified the applicant that it would not waive the $30 fee.
On 27 April 2020, the applicant sought external review of the Decision by the Information and Privacy Commission ("IPC").
On 27 May 2020, the IPC notified the applicant that it was satisfied that the Decision was justified. The IPC's letter also indicated that an application for review could be made within 20 days of the date of that letter.
On 27 June 2020, the applicant signed an administrative review application form ("Administrative Review Application") for the commencement of a proceeding in the Tribunal. That form does not bear a Tribunal stamp and as such the date of its lodgement is not clear.
The Administrative Review Application seeks review of, and attaches a copy of, the IPC's 27 May 2020 letter. The only ground for review is that the "decision is wrong".
On 25 November 2020, the respondent was served with the Administrative Review Application.
On 8 February 2021 the respondent provided written submissions in accordance with directions made by the Tribunal. Those submissions indicated, amongst other things, the respondent's position that the Administrative Review Application had been filed out of time.
On 26 April 2021, a guardian ad litem was appointed for the applicant in this proceeding.
On 4 May 2021, the parties agreed that a hearing could be dispensed with and the application could be determined on the papers.
On 17 May 2021 the applicant, via his guardian ad litem, provided a report, including written submissions, to the Tribunal.
Subsequently, one of the parties to the proceeding made an application for an anonymisation order. That led to a further round of submissions. The Tribunal has considered those submissions and has concluded that such an order is unnecessary given the subject matter of this proceeding.
[3]
Jurisdiction
The Decision, being a decision that the access application was invalid, is reviewable by the Tribunal: s 80(a) of the GIPA Act. The Tribunal's jurisdiction to conduct this review derives from s 100 of the GIPA Act, read with ss 28 and 30 of the Civil and Administrative Tribunal Act 2013 (NSW) and s 9 of the Administrative Decisions Review Act 1997 (NSW).
[4]
The Tribunal's task
The Tribunal's task, briefly stated, is to decide what the correct and preferable decision is as to whether the access application was valid or invalid, having regard to the material before it and any applicable written or unwritten law. The Tribunal re-makes the decision, as if it were the administrator: s 63 of the ADR Act; Commissioner of Police v Danis [2017] NSWCATAP 7 at [31].
The material before the Tribunal may include material not before the original decision-maker and the Tribunal's decision is focused on the present position, not the position at the time of the original decision: s 63 of the ADR Act; YG v Minister for Community Services [2002] NSWCA 247 at [25]; Frugtniet v Administrative Decisions Tribunal (Appeal Panel) [2005] NSWCA 257 at [45]; Commissioner of Police v Danis at [31].
[5]
Legal framework
The following provisions of the GIPA Act are relevant:
41 How to make an access application
(1) An application or other request for government information is not a valid access application unless it complies with the following requirements ... for access applications:
...
(c) it must be accompanied by a fee of $30
101 Time for applying for NCAT administrative review
(1) An application for NCAT administrative review must be made within 40 working days after notice of the decision to which the review relates is given to the applicant (unless subsection (2) gives a longer period to apply for NCAT administrative review).
(2) If the decision is the subject of review by the Information Commissioner, an application for NCAT administrative review can be made at any time up to 20 working days after the applicant is notified of the completion of the Information Commissioner's review.
(3) If an application for NCAT administrative review of a decision is made while the decision is the subject of review by the Information Commissioner, the Information Commissioner's review is to end.
(4) NCAT may, on application by a person wanting to make an application for NCAT administrative review out of time, extend the time for the making of such an application by the person if NCAT is of the opinion that the person has provided a reasonable excuse for the delay in making the application.
(5) An application to extend the time for the making of an application for NCAT administrative review must be in writing unless NCAT dispenses with the requirement in a particular case.
(6) The time for making an application for NCAT administrative review may be extended under this section even if that time has expired.
127 Waiver, reduction or refund of fees and charges
An agency is entitled to waive, reduce or refund any fee or charge payable or paid under this Act in any case that the agency thinks appropriate, subject to the regulations.
Section 41 of the NCAT Act provides:
41 Extensions of time
(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.
(2) Such an application may be made even though the relevant period of time has expired.
[6]
Is an extension of time necessary?
Section 101 of the GIPA Act sets time restrictions on the making of applications for administrative review by the Tribunal. As the Decision was the subject of review by the IPC, s 101(2) applies. It provides:
101 Time for applying for NCAT administrative review
...
(2) If the decision is the subject of review by the Information Commissioner, an application for NCAT administrative review can be made at any time up to 20 working days after the applicant is notified of the completion of the Information Commissioner's review.
The applicant was notified of the decision on 27 May 2020. This is to be inferred from the date of the IPC's letter, the fact that it was sent by email and the absence of any contention by the applicant that the IPC's letter was received by him at a later date. Thus, s 101(2) required that the Administrative Review Application be made within 20 working days of 27 May 2020.
"Working day" is defined in cl 1 of Sch 4 of the GIPA Act as follows:
working day means any day that is not a Saturday, Sunday, public holiday or any day during the period declared by the Premier as the Christmas closedown period.
Thus the period of 20 working days from 27 May 2020 does not include Saturdays or Sundays. It also does not include 8 June 2020, which was a public holiday.
Further, where an Act prescribes or allows a period of time, dating from a particular event, the day of that event is excluded from the calculation of the prescribed or allowed period of time: s 36(1) of the Interpretation Act 1987 (NSW). In the present case the day of the event is 27 May 2020 so that day is also excluded from the calculation.
Thus, in the calculation of the 20 working days period, it is necessary to exclude 27 May 2020, Saturdays, Sundays and 8 June 2020. With the exclusion of those days, the 20 working days period expired on 25 June 2020.
Assuming, in a manner most favourable to the applicant, that the Administrative Review Application was lodged on 27 June 2020 (noting that it was not served until 25 November 2020), it was lodged out of time. Thus, an extension of time is necessary.
[7]
Should there be an extension of time?
Section 101(4) of the GIPA Act provides:
(4) NCAT may, on application by a person wanting to make an application for NCAT administrative review out of time, extend the time for the making of such an application by the person if NCAT is of the opinion that the person has provided a reasonable excuse for the delay in making the application.
Section 101(4) provides a discretion to extend time, however that discretion is enlivened only "… if NCAT is of the opinion that the person has provided a reasonable excuse for the delay in making the application".
In other words, the formation of the opinion by the Tribunal that there is a reasonable excuse for the delay is a necessary pre-condition to any exercise of the Tribunal's discretion to extend time: see also Turner v Commissioner of Police, NSW Police Force [2014] NSWCATAP 4 at [16]-[18].
In considering where there is a reasonable excuse for the delay, other considerations such as the merits of the application for review, any prejudice to either party and the public interest, are not relevant: Turner at [18]. Such considerations may become relevant to the exercise of the discretion if and when the Tribunal forms the opinion that there is a reasonable excuse: Thomson v Sydney Trains [2015] NSWCATAD 257 at [28].
The applicant has not provided any evidence as to why the Administrative Review Application was not filed within time. It follows that the Tribunal cannot be satisfied that there is a reasonable excuse for the delay. Absent such satisfaction, the discretion to extend time is not enlivened.
The above analysis concerns an extension of time under s 101(4) of the GIPA Act. There is potentially another source of power to extend time to make an applicant for review under s 100 of the GIPA Act, namely s 41 of the NCAT Act.
However, the view that has been taken in this Tribunal is that s 101(1) of the GIPA Act prevails over s 41 of the NCAT Act: see Thomson v Sydney Trains at [34]-[36]; CGU Workers Compensation (NSW) Pty Ltd v Department of Planning and Environment [2018] NSWCATAD 32 at [9] and [10]; Saleam v Sydney Local Health District [2020] NSWCATAD 77 at [39]-[46] and Malliate v Commissioner of Police, NSW Police Force [2021] NSWCATAD 56 at [22].
In any event, the Tribunal would have reached the same conclusion if s 41 prevailed in view of the absence of an adequate explanation for the delay and the lack of utility of extending time in circumstances where the Decision was the correct and preferable decision for the reasons set out at [36] below.
In any event, had the Administrative Review Application been brought within time (whether in fact, or by virtue of the grant of an extension of time), it would have failed because:
1. s 41(1)(c) of the GIPA Act provides that an access application is not valid unless it is accompanied by a fee of $30;
2. it is common ground that the $30 fee was not paid;
3. the essence of the applicant's submission was that the fee should have been waived under s 127 of the GIPA Act, which empowers the respondent to waive any fee payable under the GIPA Act; and
4. the Tribunal is not empowered by the GIPA Act (cf s 80) or otherwise to review decisions made under s 127 of the GIPA Act: see Page v Southern Cross University [2017] NSWCATAP 89 at [34] and Johnston v Department of Education and Communities [2013] NSWADT 132 at [38]. In this regard, it may be noted that certain decisions relating to processing charges and advance deposits are reviewable under s 80(j)-(l) of the GIPA Act, however application fees payable under s 41(1)(c) of the GIPA Act are different and distinct from processing charges and advance deposits: see Page at [31]; National Tertiary Education Union v Southern Cross University [2015] NSWATAD 151.
[8]
Conclusion and Order
For the above reasons, the correct and preferable decision is that the access application is invalid and the Administrative Review Application must be dismissed.
The Tribunal orders that:
1. The application for review dated 27 June 2020 is dismissed.
[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: 24 November 2021