National Tertiary Education Union v Southern Cross University

RELEVANT LEGISLATIVE PROVISIONS

1. Section 64 of the GIPA Act provides: 64 Processing charge for dealing with access application (1) An agency may impose a charge (a processing charge) for dealing with an access application at a rate of $30 per hour for each hour of processing time for the application. Note. The decision to impose a processing charge is reviewable under Part 5. (2) The processing time for an application is the total amount of time that is necessary to be spent by any officer of the agency in: (a) dealing efficiently with the application (including consideration of the application, searching for records, consultation, decision-making and any other function exercised in connection with deciding the application), or (b) providing access in response to the application (based on the lowest reasonable estimate of the time that will need to be spent in providing that access). (3) The application fee of $30 paid by an applicant counts as a payment towards any processing charge payable by the applicant. (4) Access to government information granted in response to an access application may be made conditional on payment of any processing charge imposed for dealing with the application.
2. Section 65 of the GIPA Act provides: "65 Discounted processing charge - financial hardship (1) An applicant is entitled to a 50% reduction in a processing charge imposed by an agency if the agency is satisfied that the applicant is suffering financial hardship. Note. The discount applies only to the processing charge, not the application fee. If a 50% reduction in processing charge applies, the application fee will pay for the first 2 hours of processing time (not just the first hour). See section 64. (2) The agency may refuse to allow the discount if satisfied that the applicant is making the application on behalf of another person in order to obtain the discount for that person. (3) The regulations may prescribe circumstances that constitute financial hardship. Note. A decision to refuse to reduce a processing charge is reviewable under Part 5."
3. Clause 9(c) of the Government Information (Public Access) Regulation 2009 (NSW) provides that an agency is required to reduce, by 50%, the processing charge payable under the GIPA Act for dealing with an access application if the applicant provides evidence that the applicant is a non-profit organisation.
4. Section 66(1) of the GIPA Act provides: "66 Discounted processing charge - special public benefit (1) An applicant is entitled to a 50% reduction in a processing charge imposed by an agency if the agency is satisfied that the information applied for is of special benefit to the public generally. Note. The discount applies only to the processing charge, not the application fee. If a 50% reduction in processing charge applies, the application fee will pay for the first 2 hours of processing time (not just the first hour). See section 64. A decision to refuse to reduce a processing charge is reviewable under Part 5."
5. Section 68 of the GIPA Act provides: "68 Advance deposit for payment of processing charge (1) An agency may by notice to an applicant require the applicant to make an advance payment of a processing charge (as an advance deposit). Note. The decision to require an advance deposit is reviewable under Part 5. (2) The period within which the application is required to be decided stops running from when the decision to require an advance deposit is made until payment of the advance deposit is received by the agency. (3) The notice requiring an advance deposit must: (a) include a statement of the processing charges for work already undertaken by the agency in dealing with the application, and (b) include a statement of the estimated processing charges for work expected to be required to be undertaken by the agency in dealing with the application, and (c) specify a date by which the advance deposit must be paid (being a date at least 20 working days after the date the notice is given), and (d) include a statement that if the advance deposit is not paid by the due date the agency may refuse to deal further with the application and that this will result in any application fee and advance deposit already paid being forfeited. (4) An agency can extend the date by which an advance deposit must be paid and is to give the applicant notice of any extension (indicating the new date by which the advance deposit must be paid)."
6. Section 105 of the GIPA Act provides: "105 Onus on agency to justify decisions (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. (2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review. (3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review."
7. Other relevant provisions are considered in the discussion below.

ROLE OF TRIBUNAL

1. The Tribunal's role is to conduct an administrative review under the Administrative Decisions Review Act 1997 (NSW) of reviewable decisions of an agency, upon application by a person who is aggrieved by a reviewable decision of an agency (GIPA Act, s 100). In determining an application for an administrative review, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law (Administrative Decisions Review Act, s 63(1)).
2. The NTEU's application and submissions reflected a misconception that the Tribunal's role is, at least in part, to determine the validity of certain administrative actions of the University. The NTEU's application to this Tribunal contended that the University failed to meet its obligations under the GIPA Act as it: 1. failed to decide the NTEU's application within the decision period contrary to s 57 of the GIPA Act; 2. failed to give the NTEU notice of the University's decision within the decision period contrary to s 57 of the GIPA Act; 3. breached s 69 of the GIPA Act by seeking an advance 100% deposit of the processing charge it imposed; 4. failed to provide proper notices of advance deposits contrary to s 68 of the GIPA Act; and 5. failed to discount by 50% the processing charge it imposed for processing the access request made by the NTEU contrary to s 65 of the GIPA Act and cl 9 of the Government Information (Public Access) Regulation.
3. Whilst each of these contentions may be relevant to the Tribunal's review of decisions made by the University, the Tribunal's function is not to make declarations as to whether an agency has complied with or has failed to comply with the GIPA Act. It may only consider whether such failures have occurred in the course of reviewing a reviewable decision and would generally only do so if this is relevant to the review or otherwise relevant to the exercise of the Tribunal's functions.
4. The NTEU sought orders requiring the University to do certain things (such as provide information the NTEU sought in its access application to the NTEU and refund its application fee). The Tribunal's powers are limited to reviewing the decisions the subject of the application then making one or more of the decisions in s 63(3) of the Administrative Decisions Review Act (broadly, affirming or varying the decision or setting the decision aside and either making a decision in substitution for it or remitting it to the original decision maker for reconsideration).

WHAT ARE THE DECISIONS UNDER REVIEW?

1. The NTEU indicated on its application to the Tribunal that it was notified of the University's decision on 13 October 2014. Whilst this might suggest that it was only seeking review of a decision made on that date, the annexures to the application make clear that it is also contesting decisions made after that date.
2. The NTEU's application is properly construed as seeking review of the following decisions or purported decisions of the University: 1. to impose a processing charge (made or purportedly made on 13 October 2014); 2. to require the NTEU to pay an advance deposit in the amount of $2,791.20 (made or purportedly made on 13 October 2014); 3. to require the NTEU to pay an advance deposit in the amount of $1,395.60 (made or purportedly made on 21 November 2014); 4. to refuse a reduction in a processing charge (being the purported decision to refuse to further reduce the proposed processing charge to zero) (made or purportedly made on 21 November 2014); and 5. a deemed refusal decision (claimed to have been made on 4 November 2014).
3. These are the decisions which the NTEU identified in its submissions as being the reviewable decisions the subject of its application.
4. The NTEU also identified in its submissions the University's purported decision of 23 December 2014 to refuse to deal with the access request as a relevant reviewable decision. The Tribunal does not have jurisdiction to review the University's purported decision under s 70 of the GIPA Act, as it was made after the NTEU's application to this Tribunal. However, I note that the University accepted in its submissions that its purported decision to refuse to deal further with the application was not valid.
5. Preliminary questions arise as to whether the University was entitled to make, and/or did in fact make, each of the decisions of which the NTEU's application sought review.

Has the University made a reviewable decision to impose a processing charge?

1. There is a real issue as to whether a reviewable decision to impose a processing charge may be made prior to the determination by an agency of an application. It is necessary to consider the issue in order to determine whether the University has in fact made a reviewable decision under s 64 of the GIPA Act, as it has purported to do, or whether its calculation of the estimated processing charge is in fact a decision under 68 (concerning an advance deposit). The necessity to address this arises because the Tribunal's jurisdiction to review the decision depends upon it being a reviewable decision the subject of the NTEU's application.
2. The legislative scheme concerning processing charges is, broadly, as follows. The GIPA Act makes provision in s 42(b) for an applicant to, at the time of making an application, include a request for a reduction in processing charges for the application (including relevant supporting information, such as evidence of hardship or special public interest). Section 64 of the GIPA Act, which is set out in full above, provides in subsection (1) that an agency may impose a charge for dealing with an access application at a rate of $30 per hour for each hour of processing time for the application. Sections 65 to 67 provide for circumstances in which an applicant is entitled to a reduction in or waiver of a processing charge.
3. Pursuant to s 68 of the GIPA Act, an agency may request an advance deposit of a processing charge by a notice which contains certain information, including about processing charges for work already done and estimated processing charges for anticipated work. If an applicant fails to pay the advance deposit within a stipulated time, the agency may refuse to deal further with the application (GIPA Act, s 70).
4. Notice of an agency's decision to provide access to information must state whether any processing charges will be payable for access to the information and indicate how those charges have been calculated (GIPA Act, s 62). A decision to impose a processing charge is a reviewable decision (GIPA Act, s 80).
5. Section 64 of the GIPA Act does not refer to the making of a decision concerning a processing charge. Rather, s 64(1) empowers an agency to "impose" a charge. It is doubtful that the imposition of a charge could occur until work on an application had been finished and the number of hours spent on the application was known. It is also unlikely that, until the application is determined, the agency would know the total amount of time that is necessary to be spent by any officer of the agency in dealing efficiently with the application (within s 64(2)(a)). Further, it is not until an agency has decided an access application that it can determine whether it is entitled or empowered to impose a processing charge. If the agency does not decide the access application within time, the applicant is entitled to a refund of the advance deposit and no processing charge can be imposed for dealing with the application (GIPA Act, ss 63(4), 71(2)). Conversely, if the applicant fails to pay an advance deposit within the specified time frame and the applicant is required to do so, the agency may refuse to deal further with the access application (GIPA Act, s 70(1)). In either case, no processing charge would be payable.
6. The provision, in s 62, for notice of an agency's decision to provide access to information to indicate whether processing charges are payable and, if so, how they have been calculated also suggests that a decision about processing charges is to be made at the time an agency decides to provide access to information and not before.
7. One consideration which might support the contrary view that an agency can decide to impose a processing charge at an earlier stage is the proposition that the decision to impose a processing charge must logically precede the decision to require payment of an advance deposit. Section 68 of the GIPA Act, which empowers an agency to require an applicant to make an advance payment of a processing charge, is premised upon an agency contemplating imposing such a charge. However, as it requires an agency to include a statement of "estimated processing charges for work expected to be required to be undertaken" (GIPA Act, s 68(3)(b)), in my view it precedes the operative decision to impose the processing charge under s 64. It is clear from s 71 of the GIPA Act that an agency is not bound by its estimate of processing charges, but may in fact arrive at a different figure once the application is determined. It is not until the agency determines the amount of the processing charge that it may "impose" the charge.
8. It is a "decision to impose a processing charge" which is reviewable, pursuant to s 80(j) (my emphasis). A decision to require an advance deposit (which is also a reviewable decision) is not a decision to impose a processing charge, for reasons given above.
9. The language of s 70(3) of the GIPA Act lends some support to the proposition that, at the stage of requiring an advance deposit, the agency has not made an operative or reviewable decision to impose a processing charge. It provides that the review of a decision to refuse to deal further with an application for failure to pay an advance deposit is to be a review of both the refusal decision and the decision to impose the advance deposit. It does not refer to such a review including a review of the decision to impose a processing charge.
10. For these reasons, notwithstanding the University's claim in its letter to the NTEU of 13 October 2014 to have determined to impose a processing charge under s 64 of the GIPA Act, it has not yet made a reviewable decision to impose a processing charge under that provision (see GIPA Act, s 80(j)). Accordingly, such a decision is not properly before the Tribunal for review in these proceedings.

Has the University made a reviewable decision to refuse a reduction in a processing charge?

1. The GIPA Act contemplates that an applicant's entitlement to a discount of a processing charge is to be determined at the time access is granted, not at the time an advance deposit is required. Sections 65(1) and 66(1) of that Act provide for an applicant's entitlement to a reduction in a processing charge "imposed by an agency." Imposition of a processing charge may only occur when an application has been determined.
2. It follows that the University has not made a reviewable decision to refuse a reduction in a processing charge within s 80(k) of the GIPA Act; it has merely foreshadowed the decision it is likely to make about the NTEU's entitlement to a reduction if it imposes a processing charge.

Decisions concerning advance deposit

1. The University made two decisions requiring the NTEU to pay it an advance deposit. The first, made on 13 October 2014, was that the NTEU was required to pay it $2,791.20 as an advance deposit. The second, made on 21 November 2014, effectively purported to vary the first decision, requiring the NTEU to pay an advance deposit of $1,395.60.
2. Neither party submitted that the University did not have power to make the second decision. Even if it did not (that is, if it were functus officio), I would have jurisdiction to review the second decision. This is because it was made in the exercise or purported exercise of a function conferred or imposed by or under the GIPA Act and, for the purposes of this review under the Administrative Decisions Review Act, it is taken to be a decision made under the GIPA Act even if it was beyond power (Administrative Decisions Review Act, s 6(2) and (3)).
3. The decision which the Tribunal is relevantly reviewing is, in my view, the University's revised decision to require the NTEU pay an advance deposit of $1,395.60, not the earlier decision that it is required to pay an advance deposit of $2,791.20. That is the latest decision and the decision which both parties understand to be operative.

Deemed refusal decision

1. The NTEU contended in its application that the University had failed to decide, or to give notice of, the NTEU's application within the decision period, contrary to s 57 of the GIPA Act and sought an order requiring the University to provide it with the information contained in its application. It also claimed, in an annexure to its application, that the University had made a deemed refusal decision pursuant to s 63(1) of the GIPA Act. In these circumstances, I am satisfied that the application, properly construed, seeks a review of a deemed refusal decision (see GIPA Act, s 80(c)). I consider below whether such a decision has in fact been made.

DECISIONS CONCERNING ADVANCE DEPOSIT

1. The NTEU made submissions about the validity of the University's requirement that the NTEU pay an advance deposit of $2,791.20 after it had determined that the NTEU was entitled to a discount in the processing charge.
2. In light of my conclusion that the decision of 13 October 2014 concerning the payment of an advance deposit is not the decision under review, the validity of that decision in the period between 5 November 2014 and 21 November 2014 is not presently in issue. I note, however, that an applicant's entitlement to a discount is determined independently of the maximum amount an applicant may be required to pay by way of an advance deposit. Under s 69(1) of the GIPA Act, the agency is to ignore any reduction in processing charge to which the applicant may be entitled when calculating the maximum advance deposit which may be required. The University's view that the NTEU was entitled to a discount in the processing charge was therefore irrelevant to the amount of the advance deposit it was entitled to require from the NTEU.
3. The NTEU has not contended that an advance deposit of $1,395.60, made on 21 November 2014, was unreasonable by reference to the estimated processing charges, although it may be inferred that the NTEU's position is that it is not required to pay anything. For reasons which follow, I reject that position.
4. If the decision under review is, contrary to my view, the University's earlier decision to impose an advance deposit of $2,791.20, then I would vary that decision to require the NTEU to pay an advance deposit of $1,395.60 because the University is not itself contending that the advance deposit should be any greater, notwithstanding that it is entitled to require a greater amount.

DEEMED REFUSAL DECISION

1. In its submissions to the Tribunal, the NTEU contended that the period within which its application was required to be decided had expired without the University making a decision. The University addressed this argument in its own submissions. As both parties have had an opportunity to be heard on the matter, and have made submissions on it, the issue may be determined consistently with the requirements of procedural fairness, notwithstanding that the question of whether the University had made a deemed refusal decision was not a question on which I directed the parties to make submissions.
2. Section 57(1) of the GIPA Act requires an agency to decide an application within 20 working days of receiving it and s 57(2) provides that this period may be extended by up to 10 working days, with a maximum extension of 15 working days, if consultation with another person is required under a provision of the GIPA Act or records are required to be retrieved from a records archive. Section 68(2) provides that the period within which the application is required to be decided stops running from when the decision to require an advance deposit is made until payment of the advance deposit is received by the agency.
3. The University stated that it received the NTEU's application on 26 August 2014 and the application fee on 16 September 2014. On 13 October 2014, it informed the NTEU that it had decided to extend the decision period to 4 November 2014 for the purposes of consultation and the retrieval of records from an archive. On the same date, it informed the NTEU that it required an advance deposit of $2,791.20 by "11 November 2013."
4. The NTEU submitted that, because the University notified the NTEU on 13 October 2014 that it required an advance deposit by a date in the past (11 November 2013), it had not complied with s 68(3)(c) of the GIPA Act, which requires the date for payment of the advance deposit to be "at least 20 working days after the date the notice is given." It said that, as a result, s 68(2) was not enlivened and the period within which the NTEU application was required to be decided did not stop running. The consequence was, according to the NTEU, that the University failed to make a decision within the decision period expiring on 4 November 2014, that this was a deemed refusal to deal with its application and that the application fee was refundable.
5. The University submitted that the reference to 2013 was a typographical error, and that the intention was clearly that the date for payment was 11 November 2014, a date at least 20 working days after the date the notice was given. It relied upon case law to the effect that a mere typographical error will not invalidate a notice (Fitzgerald v Masters (1956) 95 CLR 420, Dixon CJ and Fullagar J at 426-27; Wingadee Shire Council v Willis (1910) 11 CLR 123, Griffith CJ at 131, Barton J at 139-40, Isaacs J at 144 and Higgins J at 147-148; BHP Petroleum (Timor Sea) Pty Ltd v Minister for Resources (1994) 49 FCR 155 at 172).
6. I accept the University's submission that the date referred to in its letter was clearly intended to be 11 November 2014, and that the erroneous date does not mean that it has not complied with s 68(3)(c) of the GIPA Act. This conclusion - that a patent error does not vitiate the notice - is consistent with the authorities relied upon by the University and cited above.
7. The parties did not make submissions as to whether there was a legislative intention that a failure to comply with s 68(3)(c) would render the notice ineffective (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355). In light of my finding that there was no failure to comply with that provision, I do not need to consider the question.
8. It follows from my conclusion that the University complied with s 68(3)(c) of the GIPA Act that the period within which the application is required to be decided stopped running on 13 October 2014 (the date of the decision to require an advance deposit was made), pursuant to s 68(2) of the GIPA Act. The circumstance that the University gave the NTEU an extension of time to pay the advance deposit, and varied the amount of that deposit, does not affect the operation of s 68(2).
9. For these reasons, I find that the University did not make a deemed refusal decision and there is no such reviewable decision before the Tribunal.

NTEU'S ENTITLEMENT TO REDUCTION IN PROCESSING CHARGE

1. I have found, for reasons given above, that the University has not yet made a reviewable decision about the imposition of a processing charge or about refusing any reduction in a processing charge. However, in case I am wrong about the time at which such decisions may be made, and as the issue was fully argued by the parties, I have considered their arguments as to the NTEU's entitlement to a 100% reduction in a processing charge.
2. The NTEU challenged the University's decision that it is entitled to only a 50% reduction in the processing charge imposed by the University being, on the University's calculation, $1,395.60. The NTEU submitted that it was entitled to two 50% discounts in the processing charge under ss 65 and 66 of the GIPA Act and that those discounts were cumulative, meaning that it was not required to pay any processing charge.
3. In support of its construction of ss 65 and 66 as conferring cumulative discounts upon an applicant, the NTEU said that there was no express statement in the GIPA Act to the effect that the discounts are non-cumulative and that, if Parliament had have intended the discounts to be non-cumulative, it would have included wording to that effect. It also submitted that the language used ("is entitled to") conveyed a clear and unambiguous meaning; that is, that an applicant is entitled to both discounts if the criteria in ss 65 and 66 are met.
4. The University contended that the discounts in ss 65 and 66 are not cumulative and that, if both applied, an applicant was entitled only to a 50% reduction in a processing charge. It referred to the words "a processing charge" which appear in ss 64(1), 65(1) and 66(1) of the GIPA Act. It pointed out that s 64(1) allows an agency to impose "a processing charge," then both ss 65(1) and 66(1) confer a right to a 50% reduction in "a processing charge" if certain conditions are met. It submitted that ss 65(1) and 66(1) are referring to the same processing charge which the agency assesses under s 64. It follows, in the University's submission, that if the agency is satisfied that either discount applies, that discount will be applied to the total processing charge, not to an already discounted processing charge.
5. I accept the University's submission that the discounts in ss 65(1) and 66(1) of the GIPA Act are non-cumulative for the reasons it gives. The statutory language in those provisions picks up the language of s 64(1) which effectively defines "a processing charge" as the charge for dealing with an access application at a rate of $30 per hour for each hour of processing time for the application. Each of s 65(1) and 66(1) allow a discount of 50% to be applied to the processing charge calculated in accordance with s 64, but the legislature does not, in my view, contemplate that the processing charge may be reduced to nothing if both s 65(1) and 66(1) apply.
6. The legislature expressly contemplates a processing charge being waived in s 66(2) and (in full or in part) in s 67, using the language of waiver. The absence of an express reference to the fee being waived when ss 65(1) and 66(1) both apply supports an interpretation which accords with the plain meaning of the words in those provisions, which is that the applicant is entitled to a 50% reduction of the charge calculated under s 64 if either provision applies.
7. As there is no dispute that the NTEU is entitled to a discount in accordance with s 66, it is not necessary for me to decide whether it is also entitled to the discount by operation of s 65, since, in light of my conclusion that the discounts are non-cumulative, this would not make any practical difference to the amount of the processing charge payable.
8. The University calculated the amount of the reduction by deducting the application fee from the estimated processing charge then dividing this in half, arriving at a figure of $2,791.20. The discount to which an applicant is entitled under s 66(1) is 50% of the total processing charge (that is, 50% of the processing charge before the application fee is deducted from it).

CONCLUSION

1. I have found that the only reviewable decision the subject of the application before the Tribunal is the University's decision of 21 November 2014 to require the NTEU to pay it an advance deposit of $1,395.60 by 19 December 2014, pursuant to s 68 of the GIPA Act. The date of 19 December 2014 is 20 working days after 21 November 2014, consistently with the requirements of s 68(3)(c) of the GIPA Act.
2. The NTEU applied to the Tribunal for a review of that decision on 24 November 2014, three working days after the decision was made. Pursuant to s 70(1) of the GIPA Act, an agency is precluded from refusing to deal further with an access application where an applicant has failed to pay an advance deposit within the time required for payment, when the applicant has applied for review of the decision to require the advance deposit within time. This reflects the legislative scheme by which the Tribunal is seized of an application, and stands in the agency's shoes.
3. It is therefore appropriate to vary the University's decision to require the NTEU to make an advance payment of a processing charge, being an advance payment of $1,395.60, by making the date by which that amount must be paid seventeen working days from the date of this decision.
4. As the University has not made any other reviewable decisions the subject of the NTEU's application to this Tribunal, the Tribunal's orders have the effect of finally determining that application. 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: 17 July 2015