Page v Southern Cross University

The Issues for determination

1. The Applicant is seeking a review of the following: a. The decision to refuse to reduce the processing charges pursuant to section 66 of the GIPA Act ("the section 66 issue"); b. The decision to require an advance deposit under section 68 of the GIPA Act ("the advance deposit issue"); and c. The decision to refuse to deal further with the Access Application pursuant to section 70 of the GIPA Act ("the refuse to deal further issue").

Applicable legislation

1. The Tribunal's role is to conduct an administrative review of reviewable decisions of an agency under the Administrative Decisions Review Act 1997 ("the ADR Act") upon application by a person who is aggrieved by a reviewable decision of an agency. Pursuant to section 63 of the ADR Act 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.
2. Subsection 3(1) of the GIPA Act provides: (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure.
3. Subsection 3(2) of the GIPA Act provides: (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
4. 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.
5. 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.
6. Section 66 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. (2) If the information applied for was not publicly available at the time the application was received but the agency makes the information publicly available either before or within 3 working days after providing access to the applicant, the applicant is entitled to a full waiver of the processing charge imposed by the agency. (3) The Information Commissioner may, for the assistance of agencies, publish guidelines about reductions in processing charges under this section.
7. Clause 9(c) of the Government Information (Public Access) Regulation 2009 (NSW) provides: 9 Discounted processing charge An agency is required to reduce, by 50%, the processing charge payable under the Act for dealing with an access application if the applicant provides evidence that the applicant: (a) is the holder of a Pensioner Concession card issued by the Commonwealth that is in force, or (b) is a full-time student, or (c) is a non-profit organisation (including a person applying for or on behalf of a non-profit organisation).
8. 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).
9. Section 70 of the GIPA Act provides: 70 Result of failing to pay advance deposit (1) An agency may refuse to deal further with an access application if the applicant has failed to pay an advance deposit within the time required for payment (unless the applicant has applied for review under Part 5 of the decision to require the advance deposit within the time required for payment of the advance deposit). Note : The decision to refuse to deal further with an access application is reviewable under Part 5. (2) An agency must give notice to the applicant of its decision to refuse to deal further with the application. (3) The review under Part 5 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 decision to refuse to deal further with the application and the decision to impose the advance deposit (unless the decision to impose the advance deposit has already been reviewed under that Part).
10. 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.
11. It is common ground that the GIPA Act is beneficial legislation and, as the Applicant submits, ought to be interpreted beneficially i.e. with a wide and liberal statutory interpretation. It is proper to give it the widest interpretation which its language will permit: Bridge Shipping Pty Ltd v Grand Shipping SA (1991) HCA 45, 173 CLR 231 per McHugh J at paragraph [21]. However, "a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural": IW v City of Perth [1997] HCA 30; 191 CLR 1; (1997) 94 LGERA 224; (1997) 146 ALR 696; (1997) 71 ALJR 943 (31 July 1997) per Brennan CJ and McHugh J. Exceptions to the rights provided by the legislation should be narrowly construed: Minister Administering the Crown Lands ACT v Deerubbin Local Aboriginal Land Council (No 2) [ 2001] NSWCA 28 at paragraph [53].
12. However, as the Respondent submits, the fact that the GIPA Act is beneficial legislation does not mean that every section is to be construed beneficially. The Respondent relies on views expressed by the high Court in Adco Constructions Pty Ltd v Goudappel & Anor (2014) 308 ALR 213 at paragraph [29]: 29. It can be accepted, as was put by counsel for Mr Goudappel, that the WCA's remedial character[37] reflects a beneficial purpose which requires a beneficial construction, if open, in favour of the injured worker. But to accept the beneficial purpose of the WCA as a whole does not mean that every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially. The purpose of the provision must be identified. The evident purpose of cl 5 was to expand the regulation-making power so as to allow regulations to be made which could affect pre-existing rights. The purpose of cl 11, made pursuant to cl 5(4), was clear enough. It applied the new s 66 to entitlements to permanent impairment compensation which had not been the subject of a claim made before 19 June 2012 that specifically sought compensation under the old s 66. Its purpose was patently not beneficial.
13. Further, as the Respondent noted, even where the legislation is beneficial there must be some ambiguity in the legislation before the Tribunal must concern itself with making a decision as to which interpretation to apply.

The section 66 issue

1. It is not in dispute that the Applicant sought and was granted a 50% reduction in processing charges on the basis of financial hardship in accordance with section 65 of the GIPA Act. The Respondent did not agree to a further reduction pursuant to section 66 of the GIPA Act. Section 66 provides for a 50% reduction in a processing charge on the basis that the requested information is of special benefit to the public generally.
2. The Applicant contends that a wide and liberal interpretation of sections 65 and 66 would indicate that both discounts are available to an applicant, especially given that there is no specific statutory indication to the contrary. In contrast, the Respondent submits that the two sections are mutually exclusive.
3. The Respondent relies on the decision of Senior Member Lucy in National Tertiary Education Union v Southern Cross University [2015] NSWCATAD 151 ("the NTEU case"). The Applicant contends that the NTEU case was wrongly decided and asks this Tribunal to revisit the issue.
4. From paragraph [56] of her decision Senior Member Lucy stated: 56 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. 57 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. 58 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. 59 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. 60 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.
5. The Applicant contends that Senior Member Lucy erred in a number of areas in her decision in the NTEU case. He submits that the Senior Member merely accepted without questions the University's view that sections 65 and 66 ought to be regarded as mutually exclusive. He submits that if the Senior Member accepted the argument that "a processing charge" by necessity cannot be a zero processing charge, she made an error in that regard.
6. The Applicant further submits that the Senior Member erred in not identifying the GIPA Act as beneficial legislation and interpreting the Act in a way which supports the aims of the legislation. He says that discounts support the purpose of the legislation in providing reasonable low-cost access to information. He contends that the Senior Member interpreted the GIPA Act contrary to the beneficial purpose of the legislation in ruling that only one of the discount sections 65 and 66 can be applicable. He submits that where there is no specific statutory indication to the contrary, a wide and liberal interpretation of sections 65 and 66 would indicate that both discounts are available to an applicant.
7. The Applicant further submits that the Senior Member's regard to the language of "fee waiver" at paragraph [60] of her decision is misconceived. He contends that there is no logical reason why there should be an express reference to the fee being waived in sections 65 and 66 and that in circumstances where both sections 65 and 66 were applicable, the words "fee waiver" would be redundant. He says that if he is deemed eligible, both the discounts in sections 65 and 66 ought to be applicable.
8. In contrast, the Respondent relies on the decision in the NTEU case. The Respondent submits that in calculating the advance deposit, it is entitled to ignore any reduction in the processing charge to which the Applicant may be entitled, including any reduction under section 66 of the GIPA Act.
9. In the NTEU Case, Senior Member Lucy found that there had not yet been a decision to impose a processing charge and likewise that there had not yet been a decision to refuse to reduce the processing charge pursuant to section 65 of the GIPA Act. The Respondent submits that this is correct.
10. The Respondent contends that:

• section 80(j) makes a decision to impose a processing charge a reviewable decision. The review of a decision to impose a processing charge must, of necessity, include the ability to review the amount of that charge. Therefore, the reference to imposing a processing charge in section 80(j) must be a reference to imposing a processing charge in the amount calculated under section 64.
• section 64(1) states that 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. Section 64(2) goes on to set out the definition of processing time for the purposes of making the calculation in section 64(1). Until an access application has been decided, the agency will not be in a position to ascertain the amount of processing time and calculate the processing charge. Therefore, until the application is decided, there cannot be a decision to impose a processing charge.
• section 63(4) states that no processing charge can be imposed if the access application was not decided within time. This is further evidence that the intention is that the decision to impose a processing charge can only be made after the application has been decided. If the decision to impose the processing charge was made at the same time as the decision to require an advance deposit it would not be known whether or not the access application will be decided within time and hence whether a processing charge can be imposed.
• sections 65 and 66 both refer to a reduction in "a processing charge". A processing charge is defined in section 64(1) as a charge for dealing with an access application at a rate of $30 per hour for each hour of processing time for the application. As set out above a processing charge cannot be imposed until the application has been decided. Given that sections 65 and 66 both relate to a reduction in that processing charge, a decision under sections 65 or 66 cannot be made until a decision to impose that processing charge has been made.
• for these reasons, there has been no decision under section 66 and hence it cannot be reviewed by the Tribunal.

1. As noted, paragraphs 58 to 60 of the NTEU Case discussed the discounts referred to in paragraphs 65 and 66 of the GIPA Act and found that they are non-cumulative. The Respondent contends that as it has agreed to a 50% reduction in any processing charge under section 65 of the GIPA Act, it is not necessary for the Tribunal to decide if the Applicant is also entitled to a discount under section 66 of the GIPA Act.
2. In any event, under section 105(3) of the GIPA Act the burden of establishing that there is an entitlement to the reduction under section 66 of the GIPA Act lies on the Applicant. The Respondent submits that the Applicant has failed to establish that the information applied for is of special benefit to the public generally.

Discussion

1. At paragraphs [22] - [23] of the NTEU decision Senior Member Lucy identified the issues for determination in that matter. She stated: 22 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). 23 These are the decisions which the NTEU identified in its submissions as being the reviewable decisions the subject of its application.
2. The University had accepted in its submissions that its purported decision to refuse to deal further with the application was not valid.
3. In this matter, the Applicant is seeking a review of the following: a. The decision to refuse to reduce the processing charges pursuant to section 66 of the GIPA Act; b. The decision to require an advance deposit under section 68 of the GIPA Act; and c. The decision to refuse to deal further with the Access Application pursuant to section 70 of the GIPA Act.
4. It is clear that there is a strong overlap between the issues for determination in this matter and those in the NTEU case. The NTEU case dealt with the section 66 issue and the advance deposit issue. The question arises as to whether these issues should be revisited.
5. In BY v Director General, Attorney General's Department [2002] NSWADT 79 the Tribunal's President stated: Threshold Issue: Reopening Prior, Considered Tribunal Rulings 21 The threshold question that arises before considering any further these contentions is whether the present Tribunal should revisit the prior considered rulings. Counsel for the Administering Minister acknowledged the importance of different panels of a Division of the Tribunal being seen to deal consistently with the same or like questions. He acknowledged that the view might be taken that it would not be appropriate to revisit the previous, considered rulings. 22 In my view, a later Tribunal should exercise caution in reopening prior, considered rulings of an earlier Tribunal. Ordinarily a later Tribunal should adopt the ruling of the earlier Tribunal; and leave these questions to be finally determined within the Tribunal at the Appeal Panel level. Notably in the earlier cases where the Administering Minister's submissions have been rejected, there was no appeal; but that may have been, as counsel for the Administering Minister suggested at hearing, because ultimately following full substantive consideration the determinations in issue were affirmed. 23 Normally a prior considered Tribunal ruling should only be reopened if a new, significant argument is raised before the later Tribunal. This is not such a case. Nonetheless, I consider that some discretion should be allowed to a Divisional Head sitting at first instance to revisit prior rulings, where the Divisional Head has doubts about the prior rulings or the questions involved are of great significance, such as ones raising important issues of power or jurisdiction. (Such a ruling may itself be appealed to the Appeal Panel. In that event, the Divisional Head, who would customarily preside, is ineligible. Where there is an appeal in relation to such a ruling, the Appeal Panel should, in my view, give consideration, if it regards the ruling as doubtful, to referring the controversial question to the Supreme Court for determination.)
6. This approach was applied consistently in the former Administrative Decisions Tribunal and has been adopted in this Tribunal. See for example Bevege v Commissioner of Police NSW Police Force [2014] NSWCATAD 22.
7. Accordingly, the Tribunal should only depart from the decision in the NTEU case if it is satisfied that the reasoning in that matter was plainly wrong. In my view, the Applicant has not demonstrated that to be the case.
8. In the present case the arguments being agitated with respect to the advance deposit issue and the issue of any reduction in the processing charge to which the Applicant may be entitled are the same as those that that were the subject of a considered ruling in the NTEU case.
9. There is evidence before the Tribunal that 24 hours of work has been undertaken already in dealing with the Access Application. In my view the Respondent was entitled to request an advance deposit in relation to that work and the work that the Respondent expects will be required to be undertaken in dealing with the Access Application.
10. In these circumstances, and given the guidance in BY, I think it incumbent upon me to follow the decision that was made in the NTEU case in order to ensure consistency in decision making by the Tribunal. That aspect of the decision is therefore affirmed.

The refuse to deal further issue

1. It is not in dispute that the decision to impose the advance deposit and the decision to refuse to deal further with the Access Application have been the subject of a review by the Information Commissioner. The relevant chronology of events is as follows:

• On 24 November 2013 the Respondent notified the Applicant that it required an advance deposit.
• On 20 December 2013 the Applicant applied for external review of that decision by the Information Commissioner.
• On 8 October 2014 the Information Commissioner provided her review report
• On 9 December 2014 the Respondent notified the Applicant that it had decided to refuse to deal further with the Access Application as the Applicant had failed to pay the advance deposit.
• On 8 January 2015 the Applicant sought internal review of both of the Respondent's decisions.
• On 20 January 2015, the Respondent decided to:

• refuse to review the Respondent's decision to impose an advance deposit as it had been subject of review by the Information Commissioner; and
• refuse to deal further with the Access Application because the Applicant had failed to pay the advance deposit.
  • On 16 March 2015, the Applicant applied for external review of the 20 January 2015 decisions by the Information Commissioner.
  • On 14 August 2015, the Information Commissioner provided her review report
  • On 8 October 2015, the Applicant applied for review of the 20 January 2015 decisions by this Tribunal.

1. Section 70(3) of the GIPA Act states: (3) The review under Part 5 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 decision to refuse to deal further with the application and the decision to impose the advance deposit (unless the decision to impose the advance deposit has already been reviewed under that Part).
2. A jurisdictional question arising from section 70(3) was raised at the hearing. The issue is whether on a review of a decision to refuse to deal further with an application for failure to pay an advance deposit, section 70(3) of the GIPA Act means that this Tribunal cannot review the decision to impose the advance deposit if that decision has already been the subject of a review by the Information Commissioner. I invited the parties to make further submissions in relation to that question and they have done so. They are in general agreement in regard to how this provision is to be interpreted.
3. The Respondent submits that it is not necessary to make a determination as to the reference "already been reviewed" in section 70(3). Section 70(3) is directed at making it a requirement to review the decision to impose an advance deposit where such a review has not previously been carried out, even if such a review is not sought by the applicant. The Respondent submits that this does not mean that where there has been a previous review, the reviewing entity cannot review the decision to impose an advance deposit when reviewing the decision to refuse to deal further. It submits that the reviewing entity has the option whether or not to review the decision to impose an advance deposit where that decision has been previously reviewed.
4. Further, the Respondent submits that, as the GIPA Act is beneficial legislation, this Tribunal should be permitted to review all relevant decisions which it has not previously considered and that a previous review by the Information Commissioner of a decision to impose an advance deposit does not prevent this Tribunal from reviewing that decision on a review of the decision to refuse to deal further.
5. The Applicant referred to section 3 of the GIPA Act and noted that it is the intention of Parliament that the legislation be interpreted to further the object of the legislation, which includes encouraging the release of information to the public. Further, any discretion ought to be exercised "so as to facilitate and encourage promptly and at the lowest reasonable cost, access to government information"
6. The Applicant also submits that section 70(3) has a beneficial purpose in that it expressly extends the scope of review. He contends that this section ought to be construed beneficially and to construe any limits on the scope of review rights as narrowly as possible.
7. I agree with this submission. In my view, section 70(3) should not be interpreted as meaning that a previous review by the Information Commissioner of a decision to impose an advance deposit prevents this Tribunal from reviewing that decision on a review of the decision to refuse to deal further with an access application for failure to pay an advance deposit.
8. Section 70(1) of the GIPA Act states: An agency may refuse to deal with an access application if the applicant has failed to pay an advance deposit within the time required for payment.
9. In the present matter, it is clear that the Respondent has complied with the requirements of the GIPA Act insofar as it has given the Applicant notice of its decision to require payment of an advance deposit. It advised the amount of the deposit and the time for payment of the deposit. It is also clear that the Applicant failed to pay the advance deposit within the time required for payment. Given the history of this matter it is also clear that the Applicant was aware of the request and the possible consequences of failing to pay the advance deposit within the time required for payment.
10. The Respondent gave the Applicant notice that it had decided to refuse to deal further with the access application pursuant to section 70 of the GIPA Act as it had not received payment of the requested deposit. In my view that decision was justified.
11. It follows in my view that the Respondent's decision to require an advance deposit and the Respondent's decision to refuse to deal further with the Access Application because the Applicant has failed to pay an advance deposit within the time required for payment should be affirmed.

Orders The decisions under review are affirmed. 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: 09 October 2019