Jeray v Information and Privacy Commission

Overview

1. This is an appeal by Mr Ivan Jeray (the Appellant) against orders made in the decision of the Tribunal in Jeray v Office of the Information Commissioner [2024] NSWCATAD 119 (the Tribunal Decision).
2. It will be necessary later in these reasons to consider who is the correct respondent. It is convenient initially to refer to the decision-maker.
3. The Tribunal Decision concerned an application made to the Tribunal by the Appellant under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). The application sought an administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act) of a decision made by the decision-maker to refuse to give the Appellant access to certain information. The decision-maker refused to give access because the application was invalid. The Tribunal affirmed the decision-maker's decision.
4. The Appeal Panel has decided to allow the appeal to the extent necessary to set aside an order in the Tribunal Decision concerning the name of the respondent, but to otherwise dismiss the appeal. The Appeal Panel has also decided that the Tribunal did not have jurisdiction to affirm the decision-maker's decision. These are our reasons.

Background

1. The Appellant made an application on 20 June 2023 under the GIPA Act (the Appellant's access application), addressed to the Information and Privacy Commission (the IPC), requesting the following information: "All records that indicate the reasons why the Information Commissioner: - did not appear and be heard in case no […] and […] and - chose to appear and be heard in case no. […] In the NSW Civil and Administrative Tribunal."
2. The cases mentioned appear to be proceedings previously commenced by the Appellant in the Tribunal.
3. On 26 June 2023, the Right to Information Officer of the IPC wrote a letter to the Appellant, under the IPC letterhead, indicating "we" had received the Appellant's access application. It stated that access could not be given to the requested information for the following reason: "The information sought relates to the complaints handling and investigative functions of the Information Commissioner. Therefore, under clause 2 of Schedule 2 of the GIPA Act the information that you have requested is defined as excluded information. Pursuant to section 43(1) of the GIPA Act an access application cannot be made for access to excluded information and, under Section 43(2), your application is therefore not a valid access application."
4. The Appellant applied for an internal review of this decision. The internal review was undertaken by the Director Business Improvement, who described himself in the notice of the internal review decision dated 27 July 2023 as being senior to the Right to Information Officer of the IPC. The internal reviewer also decided that the Appellant's access application was invalid because it concerned excluded information about the complaint and review functions of the Information Commissioner.
5. The decision on the internal review was treated by the Tribunal as the operative decision for the purposes of the administrative review application before it: Tribunal Decision at [2]-[3]. We will refer to this decision as the "access refusal decision".
6. The Appellant lodged an administrative review application with the Tribunal on 4 October 2023. The application named "Information Commissioner of NSW" as the respondent. The Appellant sought a review of the access refusal decision on the following ground: "The Information Commissioner of NSW has wrongly decided the applicant's GIPA application is invalid under s 43 of the GIPA act because it's wrongly alleging it is requesting excluded information under cl 2 of schedule 2 of the GIPA Act that relates to the review and complaint handling functions of the Office of the Information Commissioner."
7. The Tribunal Decision was published on 7 May 2024.
8. We note that the name of the respondent to the administrative review application was amended twice before the Tribunal Decision was published by orders made by a differently constituted Tribunal: 1. On 6 November 2023, the respondent's name was changed from "Information Commissioner of NSW" (which, as mentioned above, was the respondent named by the Appellant in his administrative review application) to the IPC. 2. On 12 February 2024, the respondent's name was changed from the IPC to "Information Commissioner" with the reasons published on 20 February 2024.

Legislative context

1. The object of the GIPA Act is to open government information to the public, including by giving members of the public an enforceable right to access government information: GIPA Act, s 3(1).
2. Government information is information that is contained in a record held by an agency: GIPA Act, s 4(1) (definition of "government information"). An agency includes a Public Service agency and a public office: GIPA Act, s 4(1) (definition of "agency").
3. Part 4 of the GIPA Act contains provisions enabling a person to apply or make another request to an agency for access to government information. Such an application or request is called an access application.
4. Section 58(1) of the GIPA Act provides that an agency may decide an access application in different ways. This includes by deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information.
5. In addition, s 43(1) of the GIPA Act provides that an access application cannot be made to an agency for access to excluded information of the agency. Information is excluded information of an agency if it is information that relates to any function specified in Sch 2 to the GIPA Act in relation to the agency: GIPA Act, Sch 4, cl 1 (definition of "excluded information"). Section 43(2) provides that an application for such information is not a valid access application.
6. Schedule 2 to the GIPA Act lists the following (the IC excluded information ground): "The office of Information Commissioner - review, complaint handling, investigative and reporting functions."
7. Consequently, information that "relates to" the review, complaint handling, investigative and reporting functions of the "office of Information Commissioner" is excluded information for the purposes of the GIPA Act.
8. Even if an application for access to excluded information of an agency is made to a different agency, the agency to which the application is made may refuse the application under s 58(1) of the GIPA Act on the basis that there is an overriding public interest against disclosure of the information. This is because cl 6(1) of Sch 1 to the GIPA Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency unless the agency has consented to its disclosure. Clause 6(2) provides that before an agency decides an access application by refusing to provide access to information on the basis that it is excluded information of another agency, the agency is required to ask the other agency whether the other agency consents to disclosure of the information.
9. Part 5 of the GIPA Act is headed "Review of decisions". It provides for the review of decisions made by agencies under that Act and is comprised of the following Divisions: 1. Division 1 defines the term "reviewable decision" used in the Part. A decision by an agency that an application is not a valid access application is a reviewable decision: GIPA Act, s 80(a). 2. Division 2 enables a person aggrieved by a reviewable decision to apply for an internal review of the decision by the agency. 3. Division 3 enables a person aggrieved by a reviewable decision to apply to the Information Commissioner for a review of the decision. The reviewable decision must be the subject of an internal review by the agency before it can be reviewed by the Commissioner unless the aggrieved person is the access applicant or an internal review of the decision is not available to the aggrieved person. The Appellant is the access applicant because he applied for access under his access application. 4. Division 4 enables an access applicant who is aggrieved by a reviewable decision to apply to the Tribunal for an administrative review of the decision. An internal review is also required before Tribunal can consider an administration review application because of the operation of s 55(3) of the ADR Act, as modified by the s 102 of the GIPA Act.
10. The GIPA Act expressly addresses the relationship between reviews by the Information Commissioner under Div 3 of Pt 5 and administrative reviews by the Tribunal under Div 4 of Pt 5 in the following ways: 1. Section 98 prevents the Commissioner from reviewing a reviewable decision if the decision is or has been the subject of an administrative review by the Tribunal. 2. Section 99 enables the Commissioner, with the consent of the applicant for review, to refer a decision of an agency that is the subject of a review by the Commissioner to the Tribunal for an administrative review. 3. Section 101(2) provides that if a reviewable decision is the subject of a review by the Commissioner, an application for an administrative review by the Tribunal can be made at any time up to 20 working days after the applicant is notified of the completion of the Commissioner's review. 4. Section 101(3) provides that if an application for an administrative review by the Tribunal of a decision is made while the decision is the subject of review by the Information Commissioner, the Commissioner's review is to end. 5. Section 104 provides that the Commissioner has a right to appear and be heard in any proceedings before the Tribunal (and proceedings on an appeal in respect of any such proceedings) in relation to an administrative review by the Tribunal. 6. Section 111 enables the Tribunal to refer any matter to the Commissioner that the Tribunal considers is indicative of a systemic issue in relation to the determination of access applications by a particular agency or by agencies generally.
11. Finally, s 42 of the Government Information (Information Commissioner) Act 2009 (NSW) (GIIC Act) requires the leave of the Supreme Court to bring civil or criminal proceedings against the Information Commissioner in respect of an act, matter or thing done or omitted to be done for the purpose of executing the GIIC Act or any other Act.

Tribunal Decision

1. The Tribunal focused on deciding three issues: Tribunal Decision at [26].
2. First, the Tribunal decided the name of the respondent should be amended yet again to "Office of the Privacy Commissioner" for the following reason (Tribunal Decision at [41]): "With a view to giving effect to the Tribunal's guiding principles of 'just, quick and cheap', I am prepared to accept that the respondent in these proceedings should be described as 'Office of the Information Commissioner' and that it is appropriate to make an order to that effect."
3. Second, the Tribunal decided s 42 of the GIIC Act did not prevent the administrative review application being brought without the leave of the Supreme Court for the following reasons: "42 Both parties argued that s 42 of the GIIC Act does not apply to the current administrative review proceedings. 43 In my view, s 42 of the GIIC Act does not apply to these administrative review proceedings, as the Tribunal is effectively standing in the shoes of the respondent and making what it considers to be the correct and preferable decision on the evidence before it. 44 In these proceedings, the Tribunal is not determining a civil claim against the respondent, such as a claim for damages under the Privacy legislation, in which event I consider that leave of the Supreme Court would be required under s 42(2)."
4. Third, the Tribunal decided the Appellant's access application was invalid because it sought access to excluded information of the respondent (then named the Office of the Information Commissioner) and the correct and preferable decision was to affirm the decision under review: Tribunal Decision at [79]. The Tribunal gave the following reasons for its decision (Tribunal Decision at [69]−[78]): 1. The expression "relates to" used the definition of "excluded information" in cl 1 of Sch to the GIPA Act must be given a wide meaning. In support, the Tribunal cited Travelex Ltd v Commissioner of Taxation (2010) 241 CLR 510 at [25] (French CJ and Hayne J) said (at [25]), Rawan Arraf v NSW Crime Commission [2022] NSWCATAD 81 at [41]-[42] (Dixon SM). Beregi v Department of Planning Industry and Environment [2020] NSWCATAP 185 (Beregi) at [48] and DNM v NSW Ombudsman [2019] NSWCATAP 77 at [46]-[47]. 2. Accordingly, the term "review function" in the IC excluded information ground, when read with the definition, has a broad meaning that encompasses all functions that relate to, in the sense of being connected to, a review and includes a review undertaken by the Tribunal. 3. Part 5 of the GIPA Act gives the Information Commissioner the following two related, but separate, classes of functions: 1. external review of a reviewable decision under powers conferred by Div 3 of Pt 5 of the GIPA Act; 2. a right of appearance in external review proceedings conducted by the Tribunal under powers conferred by s 104(1) of the GIPA Act. 1. Based on the express terms of s 104(1), and for the reasons set out above, the provision confers a function on the Information Commissioner that is in relation to the Commissioner's review functions.

Nature and scope of internal appeals

1. A party to proceedings in which the Tribunal makes an internally appealable decision may appeal to an Appeal Panel under s 80 of the Civil and Administrative Act 2013 (NSW) (NCAT Act) against the decision as of right on a question of law or, with the leave of the Appeal Panel, on any other question. The orders made in the Tribunal Decision were administrative review decisions: NCAT Act, s 30(5). An administrative review decision is an internally appealable decision: NCAT Act, s 32(1)(a) and (4). The orders made in the Tribunal Decision are therefore appealable to an Appeal Panel under s 80.
2. However, s 80 of the NCAT Act does not give a party to proceedings for an internally appealable decision an unfettered right to appeal the decision. An appeal is not simply an opportunity for a losing party to rerun its case: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. Relevantly, s 80(2) provides that a party's right to appeal is limited to questions of law. Leave is required for an appeal on any other questions. Recently, the NSW Court of Appeal has delivered several decisions which are relevant to the construction of s 80 of the NCAT Act. We refer to the principles as they have been applied by Appeal Panels in recent decisions.
3. A question of law for the purposes of s 80 of the NCAT Act should be interpreted similarly to "a question of law alone" or a "pure question of law" and therefore excludes questions of mixed fact and law: FTB v Children's Guardian [2024] NSWCATAP 174 at [8]. The pure question of law must be discernible on the face of the appeal ground and not depend on disputed facts: Imbree v Chief Commissioner of State Revenue [2024] NSWCATAP 158 (Imbree) at [25].
4. Although the categories for questions of law are not closed, whether an internal appeal involves a question of law must be approached with discernment and care: Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Unique Commercial Group) at [33] and [39]. For present purposes, it is sufficient to note that a question of statutory construction that does not depend on the resolution of disputed facts for its answer involves a question of law: FZK v Department of Customer Service [2024] NSWCATAP 185 (FZK) at [66].
5. Where leave to appeal is required, ordinarily it is appropriate to grant leave only if the case involves a point of principle or question of public importance, an unorthodox approach to the fact finding, a finding arrived at unreasonably or a clear injustice: FVA v Commissioner of Police, NSW Police Force [2024] NSWCATAP 127 at [33]; Collins v Urban [2014] NSWCATAP 17 at [82]-[84]. Also, there must be utility in granting leave: Imbree at [86].

Background

1. Initially, the Appellant relied on the following two amended appeal grounds: 1. The correct respondent (that is, the party ultimately named by the Tribunal as the respondent, the Office of Information Commissioner) did not appear and oppose the Appellant's challenge of its decision before the Tribunal. 2. The Tribunal wrongly considered the information requested by the Appellant in his access application to be excluded information under s 43 of the GIPA Act because a review function of the Office of Information Commissioner does not occur when the Commissioner appears and is heard before the Tribunal under s 104 (1) of the GIPA Act as it is the Tribunal, and not the Commissioner, that carries out the review function under Div 4 of Pt 5 of that Act.
2. The Appellant initially sought the following orders from the Appeal Panel: 1. An order setting aside the order made by the Tribunal Decision affirming the access refusal decision. 2. An order setting aside the access refusal decision. 3. An order declaring the Appellant's access application to be valid.
3. However, in written submissions dated 29 July 2024, the Appellant seeks leave for the following: 1. to amend the appeal grounds to read as follows: "The lower NCAT decision of 7 May 2024 [ie., the Tribunal Decision] could not affirm the Office of Information Commissioner's internal review decision of 27 July 2023 in response to the appellant's GIPA access application of 20 June 2023 because: 1. The correct respondent (i.e. the Office of Information Commissioner) did not appear and oppose the appellant's challenge of its decision of 27 July 2023 before the lower NCAT. 2. The lower NCAT decision provides no basis and in any case could not have reasonably found the appellant's GIPA application to be invalid under section 43 of the GIPA Act 2009, as the reasons why the Information Commissioner decided to appear and be heard or not appear (as applicable) in the relevant NCAT proceedings do not relate to a review function of the Office of Information Commissioner." 1. to amend the orders initially sought for orders that: 1. set aside the order made in the Tribunal Decision amending the name of the respondent to "Office of the Information Commissioner"; and 2. remove the Office of Information Commissioner/Information and Privacy Commission from the appeal proceedings; and 3. declare the correct respondent in the Appellant's administrative review application and thus in the appeal proceedings is the Office of Information Commissioner; and 4. set aside the order made in the Tribunal Decision affirming the decision under review; and 5. set aside the Office of Information Commissioner's internal review decision of 27 July 2023 in response to the Appellant's access application; 6. declare the Appellant's access application to the Office of Information Commissioner to be valid.
4. The principal difference between what the Appellant originally sought in the appeal and what he now seeks concerns the orders the Appellant wishes the Appeal Panel to make if he is successful. He now seeks orders to set aside the order made in the Tribunal Decision amending the respondent's name and to remove the IPC and Office of the Information Commissioner as parties to the appeal. He also seeks a declaration that the Office of the Information Commissioner is the correct respondent. The basis to remove the Office of the Information Commissioner as a party is, so the Appellant asserts, that that body did not ever appear at first instance, even though they were the proper respondent.
5. In written submissions dated 13 August 2023 at [67], the Crown Solicitor, who has acted for the putative respondent (howsoever named) both at first instance and in the appeal, consents to the Appeal Panel granting leave to permit the Appellant to seek an order setting aside the Tribunal Decision to the extent it ordered that the respondent's name be amended.
6. In these circumstances (and noting that the Appellant is not legally represented), we will grant leave to allow the Appellant to rely on his reformulated appeal grounds and to seek an order setting aside the Tribunal Decision to the extent it ordered that the respondent's name be amended. This is a case where it is appropriate for us to waive the requirement to formally lodge an amended notice of appeal based on the Tribunal's obligation to act "with as little formality as the circumstances of the case permit … without regard to technicalities or legal forms": NCAT Act, s 38(4); Unique Commercial Group at [27].

Questions raised by the appeal

1. The Appellant's reformulated appeal grounds continue to rely on substantially the same two grounds as his original amended appeal grounds to support his contention that the Tribunal fell into error, namely: 1. The correct respondent did not appear in the proceedings (both at first instance and in the appeal) to oppose the Appellant's challenge to the access refusal decision. 2. The Appellant's access application was not invalid under s 43 of the GIPA Act because the requested information was not excluded information as it did not relate to the review functions of the Information Commissioner.
2. It is convenient to refer to these two separate grounds respectively as appeal ground 1 and appeal ground 2.

Do the appeal grounds involve questions of law?

1. The Appellant submits that the appeal involves questions of law. We agree.
2. Appeal ground 1 involves the question of the identity of the correct respondent and whether it has appeared to oppose the Appellant's challenge to the access refusal decision. The debate at the heart of appeal ground 1 is the question whether the so-called "Office of the Information Commissioner" or the IPC is the correct respondent. This debate can, in our view, be determined by construing relevant statutory provisions without having to resolve any disputed facts, including by considering relevant statutory provisions to decide whether the Office of the Information Commissioner continues to exist as a separate legal entity to the IPC.
3. However, even if we are wrong about this, we would grant leave under s 80(2)(b) of the NCAT Act because the question raises a point of principle or question of public importance concerning who should be named as the respondent in proceedings for an administrative review application about decisions denying access under the GIPA Act to information concerning intervention decisions of the Information Commissioner under s 104 of that Act.
4. Appeal ground 2 involves the question whether the Appellant's access application was an invalid application under s 43 of the GIPA Act. It is a pure question of law because it raises a question of statutory construction concerning s 43 and its relationship with the the IC excluded information ground that does not depend on disputed facts for its answer.

Other matters: jurisdictional issue and impact of interlocutory decisions

1. Before considering these appeal grounds, we should mention two further matters.

Jurisdictional issue concerning s 42 of the GIIC Act

1. We made an order on 23 August 2024 following the hearing of the appeal requiring the parties to lodge written submissions about whether leave from the Supreme Court is necessary before the proceedings for an administrative review of the access refusal decision can be brought. As mentioned above, s 42 of the GIIC Act precludes the bringing of certain civil or criminal proceedings without the leave of the Supreme Court.
2. We decided that it was appropriate to make the order because the Tribunal is under a judicially enforceable duty to be independently satisfied that it has jurisdiction over proceedings even if the parties consent to the exercise of jurisdiction: see FZK at [49] and the cases cited there. In addition, Basten JA (with whom Meagher JA agreed) suggested in Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners - Strata Plan No 64807 [2023] NSWCA 188 at [162] that an Appeal Panel would be justified in reopening a case involving a jurisdictional issue even if it was not raised as an appeal ground because of an implied power flowing from the obligation imposed on the Tribunal by the guiding principle in s 36(1) of the NCAT Act.
3. We will deal with this jurisdictional issue after dealing with appeal ground 1 because whether s 42 of the GIIC Act precludes the Tribunal from exercising jurisdiction in proceedings for an administrative review of the access refusal decision first requires the identification of the correct respondent for the proceedings.

Impact of interlocutory decisions of differently constituted Appeal Panel

1. The Appellant made an application for miscellaneous matters dated 23 August 2024 (the current miscellaneous application) asking this Appeal Panel to review an interlocutory decision made in the appeal on 15 July 2024 by a differently constituted Appeal Panel. The decision dismissed an application made by the Appellant (the previous miscellaneous application) for the respondent not to be permitted to appear and be heard in the appeal proceedings and a declaration that the respondent's reply to appeal is invalid.
2. The reasons given by the Appeal Panel for its decision to dismiss the previous miscellaneous application were: 1. Granting the Appellant's application for an order to prevent the respondent's appearance would not only be an inappropriate exercise of discretion, but it would also be directly contrary to the Tribunal's obligation under s 38(5)(c) of the NCAT Act to provide both parties with a hearing of the appeal that is procedurally fair by affording them a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. Consequently, the application was misconceived and an abuse of process. 2. The Appeal Panel did not accept the basic contention at the heart of the application for an order to prevent the appearance because there can be no proper suggestion that the respondent, howsoever properly named, failed to participate in the proceedings at first instance. There was no demonstrated basis to dispute that the Crown Solicitor was instructed by the entity, howsoever properly named, that is ultimately led by the Information Commissioner. 3. Even if the Appeal Panel had power to do so, there would be no utility in declaring the notice of reply invalid because it would either have no real effect or lead to the need to direct the respondent to lodge a different reply to appeal with its unwarranted cost.
3. The Appellant submitted that this Appeal Panel can, under s 32(2)(a) of the NCAT Act, review an interlocutory decision made in the appeal by a differently constituted Tribunal. We disagree. Section 32(2)(a) provides that the Tribunal has, in exercise of its internal review jurisdiction, the jurisdiction to make ancillary and interlocutory decisions of the Tribunal. Significantly, s 32(3)(a) then provides that the internal appeal jurisdiction of the Tribunal does not extend to any decision of an Appeal Panel. This precludes us from reviewing an interlocutory decision of the differently constituted Appeal Panel in exercise of our internal review jurisdiction. An appeal against such an interlocutory decision can only be made to the Supreme Court on a question of law with the leave of the Court: NCAT Act, s 83(1). Accordingly, the current miscellaneous application must be dismissed.
4. At the hearing of the appeal, we also declined to deal with an application for costs made by the Crown Solicitor concerning the previous miscellaneous application because the previous miscellaneous application had been dealt with by the differently constituted Appeal Panel. We note that after we heard the appeal, the differently constituted Appeal Panel granted the application for costs. It gave its reasons for decision in Jeray v Office of the Information Commissioner [2024] NSWCATAP 195. In its reasons, the Appeal Panel was again careful (at [56]-[57]) to leave the question of whether the respondent in the appeal has been misnamed for us to decide.
5. There is nothing in these two interlocutory decisions of the differently constituted Appeal Panel that prevents this Appeal Panel from deciding the appeal grounds.

Appeal ground 1─the correct respondent did not appear

1. Appeal ground 1 concerns whether the correct respondent appeared in the Tribunal to oppose the Appellant's challenge to the access refusal decision and, whether the Tribunal was wrong to make an order in the Tribunal Decision naming the Office of the Information Commissioner as the respondent.

Appellant's submissions

1. In written submissions dated 29 July 2024, the Appellant submits that the correct respondent is an entity named "Office of the Information Commissioner" (OIC). He submits that the IPC was created by the Privacy and Government Information Legislation Amendment Act 2010 (NSW) (the 2010 Amendment Act). He submits the 2010 Amendment Act did not dissolve the OIC, but rather created the IPC as a separate organisation to serve both the OIC and the Office of the Privacy Commissioner (OPC) because those organisations cannot employ their own staff.
2. The Appellant submits that the OIC did not appear and oppose his challenge to the access refusal decision. He points to the notice of representation by legal practitioner or agent lodged with the Tribunal on 20 October 2023 which he says indicates that the Crown Solicitor was purporting to represent the IPC rather than the OIC. As the OIC did not appear to oppose his challenge, the Appellant submits that the Tribunal could not affirm the decision.
3. The OIC is the named respondent both in the Tribunal Decision and the appeal. The Appellant nevertheless submits that the Appeal Panel should set aside the order in the Tribunal Decision naming the OIC as the respondent and remove both the OIC and the IPC as parties to the appeal. He also seeks a declaration that the OIC is the correct respondent. The Appellant submits that these orders should be made for the following reasons: 1. The Tribunal does not have jurisdiction to change a party's official name, 2. Putting to one side (1), the Tribunal cannot give a party an unlawful name. 3. The IPC is neither officially known as the OIC nor can it be renamed as the OIC and to do so is unlawful. 4. In addition, the IPC is neither officially known as the OPC nor can it be renamed as the OPC and to do so is unlawful.
4. In support of his submissions that the IPC, OIC and OPC are different organisations, the Appellant points to the following legislative provisions: 1. The IC exempt information ground refers to the "office of Information Commissioner". In addition, cl 2 of Sch 2 to the GIPA Act provides separately for information about functions of the "office of Privacy Commissioner" to be excluded information. 2. The IPC, OIC and OPC are created by different statutes. The Appellant submits the OIC is created under Pt 2 of the GIIC Act and the IPC under Pt 4, Div 1 of the Privacy and Personal Information Protection Act 1998 (NSW) (Privacy Act). 3. Notes in both s 12 of the GIIC Act and s 35G of the Privacy Act indicate, by reference to s 47A of the Constitution Act 1902 (NSW) (Constitution Act), that neither the Information Commissioner nor the Privacy Commissioner can employ staff in their own offices.
5. The Appellant also points to an exchange of emails between himself and the Right to Information Officer of the IPC (the decision-maker email correspondence), which consisted of the following: 1. An email from the Appellant dated 22 November 2023 in which the Appellant: 1. indicates that his access application and request for an internal review of the original access denial should have been directed to the OIC; and 2. asks for confirmation about whether the OIC dealt with both his access application and internal review application. 1. A reply email from the Officer dated 7 December 2023 in which she indicated: "I can confirm that as per statutory powers under the GIPA Act, staff representing the Office of the Information Commissioner dealt with your access application and request for an internal review".
6. The Appellant submits that this correspondence is evidence that the decisions were made by the OIC rather than the IPC.

Opposing submissions

1. In written submissions dated 13 August 2024, the Crown Solicitor submits that the IPC, rather than the OIC, is the correct respondent for the following reasons: 1. Rule 27 of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) provides for the administrator who made an administratively reviewable decision to be a respondent to an administrative review application about the decision that is made to the Tribunal. 2. The GIPA Act confers a right to apply to the Tribunal for an administrative review of a reviewable decision made by an agency. 3. The Appellant's access application was made to the IPC and the access refusal decision was made by the IPC.
2. In addition, it is submitted that the fact that there was a dispute between the parties about the proper description of the respondent does not mean that the respondent did not appear and oppose the applicant's challenge of its decision before the Tribunal.
3. Consequently, the Crown Solicitor agrees with the Appellant that the Appeal Panel should set aside the order made in the Tribunal Decision to amend the name of the respondent. However, the Crown Solicitor submits that the Appeal Panel should make an order in substitution of this order naming the IPC as the respondent.

Consideration

1. The GIPA Act enables a person to make an access application for government information to an agency: GIPA Act, s 41. An agency is defined to include a Public Service agency: GIPA Act, s 4(1) (definition of "agency").
2. A Public Service agency has the same meaning as in the Government Sector Employment Act 2013 (NSW) (GSE Act): GIPA Act, Sch 4, cl 1 (definition of "Public Service agency"). Under the GSE Act, a separate Public Service agency is included in the definition of "Public Service agency" in s 3(1) of that Act. The term "separate Public Service agency" is defined by s 3(1) of the GSE Act to mean a Public Service agency listed in Pt 3 of Sch 1 to the Act. The IPC is listed in Pt 3.
3. It follows that the IPC is a Public Service agency within the meaning of the GSE Act and is therefore an agency for the purposes of the GIPA Act.
4. The Appellant's access application was made to the IPC. Indeed, the Appellant acknowledged this was the case in his oral submissions when he submitted that he simply used the form provided on the IPC website to make his access application. As we mentioned above, the decision to refuse access was initially made by the Right to Information Officer of the IPC under the IPC letterhead. The access refusal decision to which the Appellant's administrative review application related was made on an internal review by another more senior officer of the IPC. With this context in mind, the access denial decision was a decision made by or on behalf of the IPC.
5. Section 100(1) of the GIPA Act provides that the person who is aggrieved by a reviewable decision "of an agency" may apply to the Tribunal for an administrative review of the decision. A reviewable decision includes a decision of an agency that an access application is not a valid access application: GIPA Act, s 80(a). Section 105(1) of the GIPA Act provides that in any administrative review by the Tribunal concerning a decision made under the Act by an agency, the burden of establishing that the decision is justified lies on "the agency", except as otherwise provided by the section.
6. Rule 27 of the NCAT Rules provides for who are the parties to proceedings to an administrative review decision in the following terms: 27 Parties to proceedings for general decision or administrative review decision The parties to proceedings for a general decision or administrative review decision are - (a) the applicant, and (b) if an order or other decision is sought from the Tribunal in respect of a person or body (other than the applicant) - the person or body in respect of whom the order or other decision is sought, and (c) if the Attorney General or another Minister intervenes in the proceedings under section 44 of the Act - the Attorney General or Minister, and (d) any other person who is made a party to the proceedings by the Tribunal under section 44 of the Act, and (e) any other person required to be joined or treated as a party to the proceedings by a Division Schedule for a Division of the Tribunal, enabling legislation or the procedural rules. Note - In proceedings for an administrative review decision, the administrator who made (or is taken to have made) the administratively reviewable decision concerned would be the person or body referred to in paragraph (b).
7. Rule 27(b), together with the note at the end of the rule, make it clear that the decision-maker who made the administratively reviewable decision that is the subject of proceedings for an administrative review must be a party to the proceedings.
8. The provisions in the GIPA Act to which we have referred, along with the clear import of r 27 of the NCAT Rules, indicate that the correct respondent for the proceedings in the Tribunal at first instance was the agency that actually made the decision to which the administrative review application related. That agency was the IPC.
9. Additionally, the OIC could not be the correct respondent because it does not exist as a separate legal entity from the IPC despite the Appellant's submissions to the contrary. This is revealed by considering the history of the creation of the OIC and IPC. The following summarises this history: 1. In 2009, the bill for the GIPA Act was introduced into the NSW Parliament and passed together with the cognate bills for the GIIC Act and the Government Information (Public Access) (Consequential Amendments and Repeal) Bill 2009 (NSW): see the entries for these bills under "Bills" on the NSW legislation website (www.legislation.nsw.gov.au). 2. Sch 1.3 to the GIIC Act amended the Public Sector Employment and Management Act 2002 (NSW) (PSEM Act) to insert the OIC in Sch 1 to the PSEM Act along with a reference to the Information Commissioner next to it (the 2009 amendment). 3. At the time of the 2009 amendment, the PSEM Act regulated public sector employment and management. This included creating the Government Service of NSW, which was comprised of different Divisions. 4. A Division was created by listing it in Sch 1 to the PSEM Act: PSEM Act, s 4C. The head of the Division was the person listed in the column next to the name of the Division: PSEM Act, s 4D. 5. Accordingly, the effect of the 2009 amendment was to establish the OIC as a Division of the Government Service with the Information Commissioner as its head. 6. Sch 4.3 to the 2010 Amendment Act made an amendment to Sch 1 to the PSEM Act by omitting the reference to the OIC and replacing it with a reference to the IPC (the 2010 amendment). The Information Commissioner remained listed in the column next to the IPC. 7. Accordingly, the effect of the 2010 amendment was that the OIC ceased to be a Division of the Government Service because it was no longer listed in Sch 1 to the PSEM Act. It was replaced by the IPC with the Information Commissioner as its head. 8. This is confirmed by the explanatory note for the bill for the 2010 Amendment Act. It states that an object of the amendments made by the Act was to merge of the OIC and Privacy NSW into the new IPC: see the entry for the bill for the Act for under "Bills" on the NSW legislation website (www.legislation.nsw.gov.au). 9. The PSEM Act was repealed by Sch 5 to the GSE Act. 10. The GSE Act reconstituted the Government Service of NSW compromised of Divisions as the Public Service of NSW comprised of Public Service agencies: GSE Act, s and cl 12(a) of Sch 4. As mentioned above, the IPC continues in existence as one of the Public Service agencies under the GSE Act.
10. It is true, as the Appellant submits, that neither the Information Commissioner nor the Privacy Commissioner can employ their own staff. This is because s 47A(2) of the Constitution Act provides that a statutory body which is a NSW Government agency, or a person holding a public office under the Government of New South Wales, cannot employ persons unless legislation specifically authorises the body or person to do so. However, this does not mean the IPC is not an agency or that it did not make the decision under review.
11. If anything, the fact that neither Commissioner can directly employ staff suggests that any group of staff working for them cannot be regarded as a separate legal entity unless there is statutory authority for it. There is statutory authority for the IPC to be regarded as a legal entity because it is a Public Sector agency under the GSE Act. However, there is no statutory support for either the OIC or OPC to be regarded as a legal entity. Indeed, as mentioned above, the OIC ceased to exist as a legal entity under the PSEM Act in 2010 because of the 2010 amendment.
12. The reference to the "office of Information Commissioner" in the IC excluded information ground did not create the OIC and does not operate to continue it in existence in perpetuity. The reference merely identifies functions by reference to which a kind of excluded information is described for the purposes of the GIPA Act. In any event, it is wrong to conflate the ground for denying access with the identity of the decision-maker. The decision-maker is the entity that makes the decision rather than, as the Appellant appears to suggest, the entity that should have made the decision.
13. In addition, the decision-maker email correspondence does not demonstrate that the access refusal decision was made by the OIC rather than the IPC. With respect, if the Right to Information Officer of the IPC was suggesting the OIC was the decision-maker, this was incorrect. For the reasons we have given, the decision was made by staff employed in the IPC headed by the Commissioner.

Disposition

1. Since the correct respondent is the IPC rather the OIC, it must follow that the Tribunal was wrong to make an order amending the name of the respondent to the OIC. But it does not follow that the IPC did not appear to oppose the Appellant's challenge to the access refusal decision. Indeed, the Appellant's submissions accept that it did. As mentioned above, the Appellant's contention is that the OIC was the correct respondent, but that it did not appear because the Crown Solicitor appeared for the IPC.
2. Appeal ground 1 has therefore been only partially successful. Accordingly, it is inappropriate to set aside the Tribunal Decision in its entirety based on this ground.
3. Section 81(1)(d) of the NCAT Act enables an Appeal Panel to determine an internal appeal by making an order in substitution of a decision it quashes or sets aside. It is more appropriate to set aside the Tribunal's order to amend the respondent's name to "Office of the Information Commissioner" and to make an order for the name "Information and Privacy Commission" to be substituted. For consistency, it is also appropriate to make an order amending the name of the respondent in the appeal to "Information and Privacy Commission".
4. Both these orders merely operate to reflect the correct name of the respondent. As we have indicated, the IPC has appeared through its legal representative both at first instance and in the appeal. In that sense, our orders do not have the effect of substituting a new party who has not previously had the opportunity to appear before the Tribunal to protect its interests.

Does the Tribunal have jurisdiction to review the access refusal decision without the leave of the Supreme Court?

1. Section 42 of the GIIC Act provides as follows: 42 Immunity of Commissioner and others (1) Neither the Commissioner nor a member of staff of the Commissioner is liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings in respect of any act, matter or thing done or omitted to be done for the purpose of executing this or any other Act unless the act, matter or thing was done, or omitted to be done, in bad faith. (2) Civil or criminal proceedings in respect of any act or omission referred to in subsection (1) cannot be brought against the Commissioner or a member of staff of the Commissioner without the leave of the Supreme Court. (3) The Supreme Court is not to grant leave under subsection (2) unless it is satisfied that there is substantial ground for the contention that the person to be proceeded against has acted, or omitted to act, in bad faith.

Appellant's submissions

1. The Appellant submits that s 42 of the GIIC Act does not require the Supreme Court to grant leave for his proceedings for the following reasons: 1. The proceedings are against the Office of Information Commissioner (as the correct respondent) and not the Information Commissioner or a member of staff of the Information Commissioner. 2. Clause 2 of Sch 2 to the GIPA Act lists the "office of Information Commissioner" and not the "Information Commissioner". The Office of Information Commissioner also meets the definition of an agency under the GIPA Act. Accordingly, they demonstrate the intention of the GIPA Act is to permit access applications to be made to the Office of Information Commissioner.

Respondent's submissions

1. The Respondent also submits that s 42 of the GIIC Act does not require the Supreme Court to grant leave for the Appellant's proceedings. It submits: 1. if the respondent is the Information and Privacy Commission, the issue of whether s 42 of the GIIC Act applies does not arise because it is neither the Information Commissioner nor a member of staff of the Information Commissioner; and 2. if the issue does arise, the Appellant did not require leave to bring his proceedings because an administrative review under the GIPA Act is not a "civil proceeding" within the meaning of s 42 of the GIIC Act.
2. In the alternative, the Respondent submits that if the Appeal Panel finds that s 42 precludes the bringing of the proceedings, the order made in the Tribunal Decision affirming the access refusal decision should be set aside and a substitute order made dismissing the proceedings.

Consideration

1. In Oliver v Nine Network Australia Pty Ltd [2019] FCA 583 at [9], Lee J observed that "jurisdiction cannot be conferred by agreement and the views of the parties are not determinative of a jurisdictional question". Accordingly, it is not dispositive that both the Appellant and Respondent submit that s 42 does not deny the Tribunal jurisdiction.
2. Other than the Tribunal Decision, only one decision of the Tribunal has considered the effect of s 42 of the GIIC Act on proceedings in the Tribunal. In Jeray v Blue Mountains City Council [2023] NSWCATAP 325 at [51], the Appeal Panel observed that s 42 could not apply to an appeal ground because the appeal was against a local council rather than the Information Commissioner. This case is therefore of limited assistance.
3. The case law on s 35A of the Ombudsman Act 1974 (NSW) (Ombudsman Act) provides a surer guide to the meaning of s 42. This is because s 42 closely follows the wording of s 35A and there are several cases, including in the Tribunal, that have considered the effect of s 35A.
4. Section 35A of the Ombudsman Act, which was inserted by the Ombudsman (Amendment) Act 1983 (NSW), provides as follows: 35A Immunity of Ombudsman and others (1) The Ombudsman shall not, nor shall an officer of the Ombudsman, be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings in respect of any act, matter or thing done or omitted to be done for the purpose of executing this or any other Act unless the act, matter or thing was done, or omitted to be done, in bad faith. (2) Civil or criminal proceedings in respect of any act or omission referred to in subsection (1) shall not be brought against the Ombudsman or an officer of the Ombudsman without the leave of the Supreme Court. (3) The Supreme Court shall not grant leave under subsection (2) unless it is satisfied that there is substantial ground for the contention that the person to be proceeded against has acted, or omitted to act, in bad faith. (4) An Australian legal practitioner assisting the Ombudsman or representing a person at an inquiry held by the Ombudsman has the same protection and immunity as a barrister has in appearing for a party in proceedings in the Supreme Court.
5. There are differences between the language used in s 35A and s 42 of the GIIC Act. For example, s 35A refers to an "officer" of the Ombudsman while s 42 refers to a "member of staff" of the Information Commissioner and s 42 does not have a corresponding provision to s 35A(4). However, we do not consider these to be substantive differences for present purposes. Critically, both provisions require the leave of the Supreme Court to bring "civil or criminal proceedings" in respect of acts, matters or things done or omitted to be done by the Ombudsman or Information Commissioner (or their officers or staff) for the purpose of executing Acts that confer functions on them. For this reason, cases about s 35A are relevant when considering the meaning and the effect of s 42 of the GIIC Act.
6. Before turning to these cases, the following should be noted about the operation of s 42: 1. Section 42(1) has the following elements: 1. The subsection prevents "civil or criminal proceedings" being brought against the Information Commissioner or a member of staff of the Commissioner for certain conduct "whether on the ground of want of jurisdiction or on any other ground". 2. The conduct to which the subsection applies is "any act, matter or thing done or omitted to be done for the purpose of executing [the GIIC Act] or any other Act". 3. However, the subsection does not cover an "act, matter or thing [that] was done, or omitted to be done, in bad faith". 1. Section 42(2) prevents civil or criminal proceedings being brought against the Commissioner or staff member for an act or omission referred to in s 42(1) unless the Supreme Court grants leave to do so. 2. Section 42(3) provides that the Supreme Court cannot grant leave unless the Court is satisfied there is a substantial ground for the contention that the Commissioner or member acted, or omitted to act, in bad faith.
7. Consequently, s 42 would prevent (without leave of the Supreme Court) the bringing of proceedings in the Tribunal for an administrative review of the access refusal decision only if all three of the following conditions are satisfied: 1. the review proceedings are proceedings against the Information Commissioner or a member of staff of the Commissioner. 2. the review proceedings are civil or criminal proceedings. 3. the decision was an act, matter or thing done or omitted to be done for the purpose of executing the GIIC Act or any other Act such as the GIPA Act.
8. We will consider each of these conditions in turn.

Are the review proceedings against the Information Commissioner or a member of the Commissioner's staff?

1. Section 59(1)(a) of the GSE Act provides that a reference in any other Act (including an Act that commenced before the GSE Act) to an officer or employee, or a member of staff, of a statutory body or statutory officer is to be read as including a reference to a Public Service employee who is employed to enable the statutory body or statutory officer to exercise functions.
2. With this provision in mind, the reference to a member of staff of the Information Commissioner in s 42 of the GIIC Act should be read as a member of staff of the IPC that the Commissioner heads.
3. Moreover, we consider that s 42 can apply to the IPC as a collective of its staff.
4. In CP v New South Wales Ombudsman [2002] NSWADT 103, O'Connor DCJ held that s 35A of the Ombudsman Act extended to the Ombudsman's Office for the following reasons: "20 Section 35A confers its immunity on the 'Ombudsman' and 'officers of the Ombudsman.' In my view, the 'Ombudsman's Office' is simply another way of describing the group covered by the expression 'officers of the Ombudsman.' I accept that the Office can be seen as a 'public sector agency' for the purposes of the [Privacy Act]. In my view the Ombudsman is the head of that Office, and his official conduct (even if later found to be outside his powers) can be treated as the conduct of the administrative Office; and similar the conduct undertaken by staff in the Office under his authority (even if the conduct is later found to be outside power) can be treated as the conduct of the personal office of Ombudsman. 21 The practical reality is that most of the work of the Ombudsman is carried out under his or her authority by employed staff belonging to the Ombudsman's Office. It would make a mockery of the immunity if the references to the Ombudsman were to be read so as to exclude from their protection the conduct of officers of the Ombudsman belonging to the organisation known as the Ombudsman's Office."
5. Ultimately, O'Connor DCJ decided that s 35A did not apply to administrative review applications under the Privacy Act because he considered that the Act had impliedly repealed s 35A to the extent it would otherwise have precluded such applications. The Court of Appeal in The Ombudsman v Koopman (2003) 58 NSWLR 182; [2003] NSWCA 277 (Koopman) found that this interpretation was wrong. Significantly, Meagher JA (with whom Mason P and Santow JA agreed) noted (at [18]) that the claimant did not challenge O'Connor DCJ's finding that "s 35A of the Ombudsman Act applies to the Ombudsman and all officers of the Ombudsman, including the Ombudsman's Office or the Office of the Ombudsman (if either of those things are, for any purpose, juristic entities)". Accordingly, Koopman does not stand in the way of the reasoning of O'Connor DCJ in CP concerning the application of s 35A to the Ombudsman's Office.
6. CP was a decision of the President of the former Administrative Decisions Tribunal (ADT). It has been held that the Civil and Administrative Tribunal should follow decisions of an Appeal Panel of the Tribunal, and decisions of the Tribunal when constituted by the President or a Deputy President of the Tribunal, unless they are clearly wrong: Thomas and Naaz Pty Ltd (ACN 101 491 703) v Chief Commissioner of State Revenue [2022] NSWCATAP 220 at [98]; Independent Liquor and Gaming Authority v D & D Natural Health Pty Ltd [2021] NSWCATAP 170 at [51]. We think the same principle should apply to decisions of an Appeal Panel of the ADT and decisions of the President or a Deputy President of the ADT.
7. The reasoning of O'Connor DCJ in CP is not clearly wrong; indeed, we find it persuasive. It is artificial to say that s 35A of the Ombudsman Act can apply to an officer of the Ombudsman's Office but not to the Office itself acting collectively through its officers. Although a decision of an officer may be made on behalf of the Office, it is still a decision made by an individual officer. The Office, like any other artificial entity such as a corporation, can only act through its individual officers. The same observations apply to decisions of the IPC made by its staff.
8. In addition, it is important to note s 8(b) of the Interpretation Act 1987 (NSW). The paragraph provides that a reference in an Act to a word or expression in the singular form includes a reference to the word or expression in the plural form. The reference in the singular to "member of staff" in s 42 of the GIIC Act can therefore be read as encompassing members acting collectively as the IPC.
9. Accordingly, whether the access refusal decision is characterised as a decision of the IPC or of a particular member of staff of the IPC, proceedings for an administrative review of the decision are proceedings to which s 42 applies provided they are civil or criminal proceedings.

Are the review proceedings civil or criminal proceedings?

1. Section 42(1) of the GIIC Act provides that "[n]either the Commissioner nor a member of staff of the Commissioner is liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings" in respect of certain conduct by them.
2. The Tribunal held that the administrative review application brought by the Appellant did not constitute civil proceedings because the Tribunal effectively stood in the shoes of the administrator and was not determining a civil claim against the respondent such as a claim for damages under the Privacy legislation.
3. In Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191 (Wojciechowska) at [98], Kirk JA (with whom Mitchelmore JA and Griffiths AJA agreed) said in relation to administrative reviews by the Tribunal: "Under s 63(3) of the ADR Act the Tribunal may affirm an administratively reviewable decision, vary it, set it aside and make a substitute decision, or set it aside and remit it for reconsideration by the administrator. If the Tribunal varies or substitutes a decision then the decision of the Tribunal 'is taken … to be the decision of the administrator' and to have had effect as such on and from the date of the administrator's actual decision (unless the Tribunal otherwise orders): ADR Act, s 66(2). Thus - reflecting the merits review nature of the process - the Tribunal is making a decision standing in the shoes of the administrator, where the decision is treated as a decision of the administrator, and where the burden of the decision relevantly falls on the administrator. That outcome weighs significantly in favour of characterising the function as involving executive, not judicial, power."
4. However, as Wojciechowska itself held, the Tribunal may nevertheless be exercising judicial power in administrative review proceedings if it can grant a civil law remedy such as damages sought by the applicant. This is the case under the Privacy Act because s 55 (2)(a) of that Act enables the Tribunal, in addition to the remedies it may grant under the ADR Act, to order a public sector agency to pay damages by way of compensation for any loss or damage suffered because of its conduct. If damages are sought under the Privacy Act, then the proceedings are properly characterised as involving an exercise of judicial power: Wojciechowska at [146]. By contrast, administrative review proceedings under the GIPA Act do not involve the exercise of judicial power: Wojciechowska at [145].
5. It was correct for the Tribunal to characterise the proceedings for an administrative review brought by the Appellant under the GIPA Act as effectively placing the Tribunal in the shoes of the administrator. The Tribunal was exercising administrative rather than judicial power.
6. Koopman held that s 35A of the Ombudsman Act prevented the commencement of proceedings for an administrative review by the ADT under s 55 of the Privacy Act without the leave of the Supreme Court. The claimant in Koopman conceded that such proceedings were civil proceedings for the purposes of s 35A: Koopman at [3] and [18]. However, Mason P observed in Koopman at [6] that "[w]hat is at issue [in Koopman] is the scope of s 35A of the Ombudsman Act in its application to a claim for compensation and other relief brought in reliance upon s 55 of the [Privacy Act]".
7. On one view, the proceedings in Koopman can be distinguished from administrative review proceedings brought under the GIPA Act because Koopman involved the exercise of judicial rather than administrative power as damages had been sought.
8. However, we consider there are several reasons why Koopman should not be distinguished on this basis.
9. First, when Koopman was decided in 2003, there was no authority to suggest that the Tribunal is exercising judicial power when a claim for damages is made under the Privacy Act in administrative review proceedings under that Act. This was not decided until 2023 by Wojciechowska. The Court of Appeal in Koopman did not characterise the power reposed in the ADT as either judicial or administrative. The nature of the power formed no part of its reasoning. In our view, it would be wrong to attribute significance to the nature of the power involved in Koopman using the benefit of the hindsight afforded by the decision in Wojciechowska.
10. Second, subsequent authority seems to stand against drawing a distinction between kinds of proceedings based on the remedies that the Tribunal may give. In Kaldas v Barbour (2017) 107 NSWLR 341; [2017] NSWCA 275, the Court of Appeal held that s 35A of the Ombudsman Act prevents the bringing of judicial review proceedings without the leave of the Supreme Court. Bathurst CJ at [121] considered that the expression "liable" in s 35A(1), when read with "[c]ivil or criminal proceedings", refers to liable to be sued rather than, for example, liable in damages or liable for some other remedy. Basten JA at [308] (with whom Macfarlan JA agreed) said, "the immunity from liability 'to … proceedings' is emphatic; combined with the requirement for leave of the Supreme Court even in proceedings alleging bad faith, there is an apparent purpose to preclude any proceedings being brought as of right against the Ombudsman."
11. Third, the following context indicates that the proceedings to which s 42 applies should not be read narrowly: 1. The use of the expression "civil or criminal proceedings" suggests "civil" was used in contradistinction to "criminal" to capture proceedings that were not criminal proceedings. As noted by Basten JA in Kaldas, the apparent purpose of s 35A of the Ombudsman Act (and also of s 42) was to preclude any proceedings as of right. 2. The term "liable" in s 35A of the Ombudsman Act (and also in s 42), as noted by Bathurst CJ in Kaldas, is directed to the proceedings rather than the remedy sought in the proceedings. This interpretation is also supported by the words that immediately follow "liable", namely "whether on the ground of want of jurisdiction or on any other ground". The express reference to the ground of want of jurisdiction, which is often invoked as a ground in judicial review proceedings, suggests s 42(1) was intended to cover proceedings involving administrative law claims in addition to civil law claims such as claims for damages: Kaldas at [123] (Bathurst CJ). 3. Although as a practical matter criminal proceedings are brought in a court, it is important to note that s 42(1) refers simply to civil or criminal proceedings without reference to the kind of body before which the proceedings are brought. This suggests s 42 extends to any proceedings regardless of the body concerned.
12. In our view, the injunction in s 42 against bringing "civil or criminal proceedings" is best understood as an injunction against bringing proceedings before a third party to quell a legal dispute concerning the conduct of the Information Commissioner or a member of the Commissioner's staff.
13. In cases of an administrative review by the Tribunal, care must be taken not to conflate the role of the Tribunal in the review with that of the decision-maker whose decision is under review. The parties to a dispute about the decision of a decision-maker are the decision-maker and the person challenging the decision. The Tribunal is not a party to the dispute even though it is clothed with the same powers as the decision-maker in order to resolve it. The Tribunal's role is to make an independent determination about what is the correct and preferable decision after an initial decision has already been made by one of the parties. Moreover, the Tribunal's jurisdiction is invoked only if an application is made to it by the aggrieved person, with the decision-maker (rather than the Tribunal) being the contradictor. The Tribunal does not act as the judge in its own cause; it acts having regard to the submissions of opposing parties.
14. The role of the Tribunal in an administrative review of decision is closer to the role of a court in a judicial review of a decision. As the Tribunal noted in relation to s 35A of the Ombudsman Act in FTN v Ombudsman NSW [2024] NSWCATAD 111 (FTN) at [73]: "Proceedings on an application for an administrative review of conduct done for the purpose of executing the Ombudsman Act are to my mind analogous to proceedings for a judicial review of such conduct (which Kaldas held were precluded by s 35A). Both kinds of proceedings involve suing the Ombudsman or the Ombudsman's officers using formal legal proceedings to obtain a review by an independent arbiter whose decision binds the parties. The substantive difference between the proceedings is that an administrative review extends to considering both the merits and legality of the conduct while judicial review is limited to considering its legality: [ADR Act], s 63(1); Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35−37; [1990] HCA 21 (Brennan J). However, this difference is immaterial for the purposes of s 35A(1). As Bathurst CJ pointed out in Kaldas, the focus of s 35A(1) is whether the Ombudsman or the Ombudsman's officers are being sued rather than the remedy being sought in the legal proceedings used to sue them."
15. We consider that s 42 applies to proceedings for an administrative review by the Tribunal of a decision, regardless of whether it is exercising judicial or administrative power to determine the proceedings, provided the decision is an act, matter or thing done or omitted to be done for the purpose of executing the GIIC Act or any other Act such as the GIPA Act. Section 42 therefore covers proceedings for an administrative review under the GIPA Act like those brought by the Appellant.

Was the access refusal decision an act, matter or thing done or omitted to be done for the purpose of executing the GIIC Act or any other Act such as the GIPA Act?

1. The phrase "act, matter or thing done or omitted to be done for the purpose of executing [the GIIC Act] or any other Act" should not be read as applying to all kinds of conduct by the Information Commissioner or the Commissioner's staff. The corresponding phrase in s 35A of the Ombudsman has not been read that way.
2. In The Ombudsman v Laughton (2005) 64 NSWLR 114; [2005] NSWCA 339 (Laughton), the Court of Appeal held that s 35A did not apply to an appeal to the Government and Related Employees Appeals Tribunal (GREAT) brought against the Ombudsman because of a decision under s 32 of the Ombudsman Act to appoint another person to a position in the Ombudsman's Office instead of the appellant. Spigelman CJ held at [26]: "In my opinion s 35A is concerned with the exercise by the Ombudsman of his or her statutory powers and functions with external effect (such as the Freedom of Information Act 1989 investigation considered in The Ombudsman v Koopman (2003) 58 NSWLR 182.). Section 32 of the Ombudsman Act is not of that character. It is concerned with the employment of staff, an internal matter not arising in the course of an investigation or report or any other such function. An appeal under s 20 of the GREAT Act is not, in my opinion, a civil proceeding 'in respect of (a) thing done ... for the purpose of executing this or any other Act.'"
3. Similarly, Handley JA held at [38]: "In my view the words 'for the purpose of executing this or any other Act' refer only to what might be called the external exercise or the adverse exercise of powers conferred by the Act in the course of obtaining information or otherwise for the purpose of conducting an authorised investigation, and do not refer to matters of internal administration."
4. In Micro Focus (US) Inc v New South Wales (2011) 195 FCR 506; [2011] FCA 787, Jagot J held that s 35A did not apply to proceedings against the Ombudsman for a breach of copyright. Her Honour held at [11] that "the act of copying software onto a computer without the licence of the owner of the copyright in the software is not something which either the Ombudsman Act or the Police Act requires or authorises to be done." Also, her Honour, applying the reasoning in Laughton, held at [18] that the copying was "not done in the exercise of or refusal to exercise the NSW Ombudsman's powers of obtaining information or investigating complaints".
5. These cases may be contrasted with the decision in FTN. In FTN, the Tribunal held that s 35A of the Ombudsman Act applied to the challenged conduct because the conduct involved a disclosure to a member of the NSW Parliament about a complaint made by the member on behalf of the applicant. It was a disclosure having an external effect because it involved an investigation of a complaint, which is a core function of the Ombudsman: FTN at [82]-[83].
6. The cases on s 35A draw a distinction between the functions of persons protected by the section that concern internal administration and functions with an external effect. An exercise of a function concerns a matter of internal administration if it involves the non-public relationship of a statutory agency to matters of an administrative kind that are common to all statutory agencies such as administration of employment responsibilities and installation and operation of computer systems: QQ v NSW Ombudsman (EOD) [2012] NSWADTAP 34 (QQ) at [26]. However, an exercise of a function will have an external effect if it is connected to an important function with a public impact that is assigned under a statute to the protected persons: QQ at [26]; Laughton at [26].
7. Given the wording of s 42 of the GIIC Act closely follows the wording of s 35A, we see no reason why the distinction between kinds of functions drawn by the cases for 35A should not also be drawn for s 42.
8. The conduct at issue here is the access refusal decision. The decision was made under the GIPA Act in response to an access application made by the Appellant. The object of the GIPA Act is to open government information to the public by various means: GIPA Act, s 3(1). To this end, functions are conferred or imposed on agencies concerning the provision of access to government information they hold. The IPC is an agency for the purposes of the GIPA Act. With this context in mind, the access refusal decision had an external effect with a public impact. It involved the exercise of important functions conferred or imposed on the IPC by the GIPA Act. It resulted in the denial of access to government information to a member of the public who had duly requested it. The decision was not about a matter concerning the internal administration of the IPC.
9. The access refusal decision was therefore an act, matter or thing done or omitted to be done for the purpose of executing the GIPA Act.

Disposition

1. For these reasons, s 42 of the GIIC Act prevents proceedings for an administrative review of the access refusal decision being brought in the Tribunal unless the Supreme Court grants leave. If leave for proceedings has not been granted where required under s 42, the Tribunal does not have jurisdiction to determine the proceedings: Koopman at [1], [3], [20]-[21]. As the Supreme Court has not granted leave, it follows that the Tribunal does not have administrative review jurisdiction with respect to the access refusal decision.

Appeal Ground 2─the Appellant's access application was not invalid

1. Appeal ground 2 concerns whether the Tribunal was wrong to affirm the decision of the respondent (that is, the IPC) to treat the Appellant's access application as invalid under s 43 of the GIPA Act because it sought excluded information covered by the IC excluded information ground. As we have decided that s 42 of the GIIC Act precludes the Tribunal from exercising administrative review jurisdiction over the access refusal decision, it is not strictly necessary for us to decide this appeal ground. However, in case we are wrong about this, we will proceed to consider whether appeal ground 2 is made out assuming the Tribunal has jurisdiction.

Appellant's submissions

1. The Appellant submits that his access application was not invalid under s 43 of the GIPA because: 1. the IC excluded information ground could only apply to information about the review functions of the Information Commissioner under Div 3 of Pt 5 of the GIPA Act and not to the administrative review functions of the Tribunal under Div 4 of Pt 5; and 2. the information requested was information relating to the review functions of the Tribunal rather than the review functions of the Commissioner; and 3. even if the information is excluded information, s 43 does not enable the IPC to treat the Appellant's access application as invalid because the information is information of the OIC rather than of the IPC.
2. As noted below, the respondent submits that even if the IPC was wrong to rely on s 43 to refuse the Appellant's access application, it could have refused access on the ground that the information was the excluded information of another agency. In response, the Appellant submits that the IPC cannot now rely on a different ground to justify its refusal than the ground on which it actually relied.
3. Consequently, the Appellant submits that the Tribunal was wrong to affirm the access refusal decision.

Opposing submissions

1. The respondent submits that the IPC was entitled to treat the Appellant's access application as invalid under s 43 of the GIPA Act because the reference to "review" functions in the IC excluded information ground should not be read narrowly. The definition of "excluded information" provides that the information must "relate to" those review functions. It therefore extends to the intervention decisions of the Information Commissioner in Tribunal proceedings.
2. The respondent submits that even if the IPC is not the agency to which the IC excluded information ground refers, the information nevertheless remains excluded information because of the operation of cl 6 of Sch 1 to the GIPA Act. The effect of that clause and its interaction with s 58 of the GIPA Act has been summarised above. As a result, it is submitted the Appellant's access application could have been refused by the IPC on the alternative ground that there was an overriding public interest against disclosure of the excluded information of another agency without its consent.
3. Consequently, the respondent submits that the Tribunal was correct to affirm the access refusal decision.

Consideration

1. As we have mentioned, the IPC relied on s 43 of the GIPA Act to treat the Appellant's application as invalid. Section 43(1) prohibits an access application being made to an agency "for access to excluded information of the agency". Section 43(2) provides that an application that contravenes this prohibition is invalid.
2. For the reasons previously given, the IPC is both an agency for the purposes of the GIPA Act and the relevant decision-maker. Therefore, for appeal ground 2 to succeed, we must be satisfied that: 1. the information requested by the Appellant was not excluded information, or 2. if it was, the information was not excluded information "of" the IPC.
3. The starting point for considering the appeal ground is to construe the IC excluded information ground on which the IPC relied.
4. The IC excluded information ground does not refer to the IPC. Rather, it refers to "[t]he office of Information Commissioner". The functions listed for the office are "review, complaint handling, investigative and reporting functions".
5. In construing "[t]he office of Information Commissioner" in the ground, the following context is relevant: 1. As we noted above, the OIC was originally created as a legal entity by an amendment made to the PSEM Act by the GIIC Act, which was one of the cognate bills to the GIPA Act. 2. The amendment created an entity whose proper name was "Office of the Information Commission". However, this proper name was not used in the ground even though the bills for both the GIPA Act and GIIC Act were introduced and passed together. Rather, "office of Information Commissioner" was used. 3. At the time that the GIPA Act was enacted, other excluded information grounds listed in cl 2 of Sch 2 to the GIPA Act used the proper names of agencies created by their own statutes. Examples include the Health Care Complaints Commission, Independent Commission Against Corruption and Judicial Commission of NSW: see Health Care Complaints Act 1993 (NSW), s 75; Independent Commission Against Corruption Act 1988 (NSW), s 4; Judicial Officers Act 1986 (NSW), s 5. 4. However, "office of" (in lowercase) was also used in cl 2 of Sch 2 as originally enacted in connection with individuals apart from the Information Commissioner who held a statutory office, including the Auditor-General, the Inspector of the Independent Commission Against Corruption, the Inspector of the Police Integrity Commission, the Legal Services Commissioner, the Ombudsman and the Privacy Commissioner. 5. The persons employed to assist these individual statutory officeholders to carry out their functions were typically employed in a relevant Division of the Government Service created under the PSEM Act, often headed by the officeholder: PSEM Act, Sch 1, Pt 1 (as in force on 17 July 2009 when the GIIC Act commenced). 6. The Divisions of the Government Service could be subject to frequent changes because the changes could be made by orders of the Governor: PSEM Act, Pt 4.1.
6. Given this context, the reference to "[t]he office of Information Commissioner" should be construed to mean the group of public sector employees who, together with the Information Commissioner, carry out the Commissioner's functions at the time the information is requested. The IPC, headed by the Information Commissioner, is currently the agency answering the description of "[t]he office of Information Commissioner" for the purposes of the IC excluded information ground.
7. If the information about the Commissioner's intervention decisions requested by the Appellant's access application is excluded information, it follows that it would be excluded information "of" the IPC for the purposes of s 43 of the GIPA Act. We turn now to consider whether it constitutes excluded information.
8. The focus of the debate between the parties was on whether intervention decisions of the Information Commissioner are "review" functions within the meaning of the IC excluded information ground. However, this focus is too narrow. It is incorrect to construe the ground in the abstract. The ground has no substantive operation of its own. It merely enlivens the definition of "excluded information" in cl 1 of Sch 4 to the GIPA Act, which provides as follows: "excluded information of an agency specified in Schedule 2 means information that relates to any function specified in that Schedule in relation to the agency."
9. It is significant that the expression "relates to" is used in the definition to connect the information with a specified function. In Beregi, the Appeal Panel considered the meaning of excluded information concerning information relating to the specified functions of the Office of Local Government (OLG). The Appeal Panel observed at [77]: "We consider that the term 'relates to', as it is used in the definition of 'excluded information' in Sch 4 to the GIPA Act, has a broad meaning. Notwithstanding Parliament's intention that the GIPA Act is to be interpreted so as to further the object of that Act (s 3(2)), that object is not to ensure the provision of access to all government information. It includes to 'open government information to the public by … providing that access to government information is restricted only when there is an overriding public interest against disclosure' (GIPA Act, s 3(1)(c)). The use of the term "relates to" indicates, in our view, that the legislature intended there to be an overriding public interest against disclosure of government information having a broad connection to the OLG's complaint handling and investigative functions, where those functions were conferred by or under any Act on the OLG (GIPA Act, Sch 2, cl 2)."
10. Ultimately, the question in each case is the extent to which the information in issue has a connection with the specified function: Watson v NSW Trustee and Guardian [2015] NSWCATAD 139 at [16].
11. We have already summarised the ways in which Pt 5 of the GIPA Act expressly addresses the relationship between reviews by the Information Commissioner and administrative reviews by the Tribunal. They include provisions that prevent the Commissioner from reviewing a decision that has already been reviewed by the Tribunal or continuing with a review of a reviewable decision if an administrative review of the decision is subsequently sought from the Tribunal. The intervention rights conferred on the Commissioner by s 104 of the Act need to be understood against this backdrop.
12. Section 104 provides that the Commissioner has a right to appear and be heard in any proceedings before the Tribunal (and proceedings on an appeal in respect of any such proceedings) in relation to an administrative review by the Tribunal. The section allows the Commissioner to be heard in relation to the decision-making of the Tribunal in those cases where the Commissioner or the Commissioner's office is not otherwise a party.
13. The Appellant submits that the "review" functions of the Information Commissioner within the meaning of the IC excluded information ground are limited to the Commissioner's review function under Div 3 of Pt 5 of the GIPA Act. Even if this is the case, we nevertheless consider that information about the Commissioner's intervention decisions under s 104 "relates to" those review functions for the purposes of the definition of "excluded information".
14. Intervention may enable the Commissioner to participate in a case where the Commissioner has already conducted a review of the decision of the agency concerned. Intervention may also enable the Commissioner to be heard in relation to a decision of the Tribunal that may impact how the Commissioner goes about conducting reviews of comparable decisions in the future. The connection between information about intervention decisions and the Commissioner's review functions is both real and significant. Accordingly, such intervention information "relates to" the Commissioner's review functions and is excluded information for the purposes of the GIPA Act.

Disposition

1. The Tribunal was correct to affirm the access refusal decision because the Appellant's access application sought excluded information of the decision-maker and to that extent was not a valid access application: GIPA Act, s 43. It is not necessary for us to address the alternative ground supporting the refusal advanced by the IPC, particularly as it is not the ground relied on for the access refusal decision. Further, there was no evidence that the pre-requisite inquiry as to whether the other agency consented to the release of the information had been made.
2. Appeal ground 2 must be dismissed.

Conclusions

1. The order of the Tribunal affirming the access refusal decision must be set aside. In substitution of this order, we will make an order dismissing the proceedings because the Tribunal does not have jurisdiction. It is not necessary for us to decide whether the Tribunal's power to dismiss proceedings for want of jurisdiction is conferred by s 55(1)(b) of the NCAT Act or necessarily implied from the Tribunal's duty to act within its jurisdiction: as discussed in Cornish v Penrith City Council [2024] NSWCATAP 107 at [12]; Commissioner of Police, NSW Police Force v FYH [2024] NSWCATAP 176 at [25]; Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16 at [21]; STAR Training Academy Pty Ltd v Commissioner of Police [2021] NSWCATAP 370 at [21].
2. In addition, we have found that the Tribunal erred by making an order amending the name of the respondent to "Office of the Information Commissioner". We will set aside this order and make an order in substitution that amends the name of the respondent to the "Information and Privacy Commission". For consistency, we will make a corresponding order amending the name of the respondent in the appeal.
3. We will also make an order dismissing the Appellant's application for miscellaneous matters dated 23 August 2024 because we do not have jurisdiction to hear an appeal from a differently constituted Appeal Panel.

Costs

1. Section 60(1) of the NCAT Act requires each party to proceedings in the Tribunal to pay the party's own costs. Costs may be awarded only if the Tribunal is satisfied that there are special circumstances warranting an award of costs: NCAT Act, s 60(2).
2. Accordingly, we will not make an order for costs in the appeal unless a party makes an application for those costs. If a party wishes to make an application for costs, the orders we make include directions for the period within which the application must be made and the exchange of written submissions and other documents. The directions also provide for the parties to include in their written submissions their views about whether the Appeal Panel can dispense with a hearing in relation to an application for costs. If an application for costs is made, the Appeal Panel will then decide whether to dispense with a hearing having regard to those submissions.

Orders

1. The orders of the Appeal Panel are: 1. The appeal is allowed, in part. 1. Orders 1 and 2 made by the Tribunal on 7 May 2024 in proceedings 2023/00314314 (the proceedings) are set aside. 2. In substitution of order 1, order that the name of the respondent in the proceedings is amended to "Information and Privacy Commission". 3. In substitution of order 2, order that the proceedings are dismissed because the Tribunal does not have jurisdiction. 4. The name of the respondent in the appeal is amended to "Information and Privacy Commission". 1. The appeal is otherwise dismissed. 2. The application for miscellaneous matters, dated 23 August 2024, is dismissed. 3. If a party to the appeal wishes to make an application for costs in the appeal, the following directions apply: 1. the party applying for costs (the costs applicant) must, within 14 days after the publication of this decision, give the other party (the costs respondent) and the Appeal Registry any submissions and documents the costs applicant intends to rely on in relation to the application; 2. the costs respondent must, within 14 days after receiving the submissions and documents of the costs applicant, give the costs applicant and the Appeal Registry any submissions and documents the costs respondent intends to rely on in response to the application for costs; 3. the costs applicant must, within 7 days after receiving the submissions and documents of the costs respondent, give the costs respondent and the Appeal Registry any additional submissions and documents the costs applicant intends to rely on in response to the costs respondent's submissions and documents; 4. the parties are to include, in their written submissions concerning the application for costs, their views about whether they consider that a hearing in relation to the application can be dispensed with pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW).

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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: 25 November 2024