Quipolly Water Action Group v NSW Department of Industry

Applicant's submissions

1. The applicant set out in submissions the operation of sections 54 and 101 of the GIPA Act. The applicant submitted that in order for those sections to be engaged, the decision from which the review rights arise must be a valid decision.
2. The applicant submitted that any decision made by the respondent on 27 September 2016 was out of time, and as a result the agency is deemed to have made the original decision again as provided by section 86 (5) of the GIPA Act.
3. Section 86 (5) provides: 86 Required period for determination of internal review .… …. …. …. (5) If a decision on the internal review is not made within the review period, the agency is deemed to have made that decision by making the original decision again, and the applicant for review is entitled to a refund of any fee paid to the agency for the review.
4. In this regard the Tribunal infers that the applicant submits that the decision of 23 May 2016 stands, and any rights attaching to the third party objector under section under section 54 (6) and 54 (7) of the GIPA Act lapsed around late July 2016.
5. The applicant submitted that any prejudice to the third party objector could be cured by the respondent writing to the third party advising them of their right to appear and be heard in the proceedings under section 104 (3) of the GIPA Act. The section provides: 104 Right of appearance before NCAT (1) The Information Commissioner has a right to appear and be heard in any proceedings before NCAT (and proceedings on an appeal in respect of any such proceedings) in relation to a review under this Division. (2) The Privacy Commissioner has a right to appear and be heard in any proceedings before NCAT (and proceedings on an appeal in respect of any such proceedings) in relation to a review under this Division of a decision that concerns a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to section 14). (3) Any person who could be aggrieved by a decision of NCAT on a review under this Division has a right to appear and be heard in any proceedings before NCAT in relation to the review. (Emphasis added)
6. A significant portion of the applicant's submission went to the view that the second 'internal review' decision of the respondent was invalid. It was on this basis that the applicant argued that there was no need to wait until the expiration of a further 40 working days from the notification on 4 October 2016, and the Tribunal could decide the matter as soon as was otherwise practical.
7. The applicant submitted that as the respondent had failed to make a fresh decision within 15 working days of the Information Commissioner's Report, any decision after that timeframe is of no consequence and the respondent is deemed to have made its original decision, and that decision prevails. The basis of this argument appears to lie in the wording of section 86 which refers to internal reviews. That section however needs to be considered in conjunction with section 93 of the GIPA Act. 93 Recommendation for reconsideration of matter by agency (1) The Information Commissioner may recommend that the agency reconsider the decision that is the subject of the Information Commissioner's review and make a new decision as if the decision reviewed had not been made. (2) The agency may, pursuant to such a recommendation, reconsider the decision and make a new decision, whether or not the decision has already been the subject of internal review by the agency. (3) The agency's reconsideration of a decision is to be by way of internal review of the decision (under Division 2) unless the decision has already been internally reviewed, in which case the agency is to reconsider the decision and make a new decision. (4) Unlike an internal review, the reconsideration of a decision that is not an internal review: (a) can be done by the person who made the original decision, and (b) can be the reconsideration of a decision made by the principal officer of the agency. (5) The reconsideration of a decision that is not an internal review cannot be done by a person who is less senior than the person who made the original decision. (6) No fee is payable for any reconsideration (including by way of an internal review) of a decision pursuant to a recommendation of the Information Commissioner. (Emphasis added) …….
8. Section 86 provides: 86 Required period for determination of internal review (1) An agency must make its decision on an internal review and give the applicant notice of the agency's decision within 15 working days (the review period) after the agency receives the application for internal review. (2) The review period can be extended by up to 10 working days if consultation is required with another person with whom the agency has not previously consulted in relation to the application. (3) The agency must (before the review period ends) give the applicant notice of any extension of the review period and indicate the date on which the extended review period will end. (4) The review period can also be extended by agreement with the applicant for review. (5) If a decision on the internal review is not made within the review period, the agency is deemed to have made that decision by making the original decision again, and the applicant for review is entitled to a refund of any fee paid to the agency for the review. (Emphasis added)
9. On the above assessment the respondent was required to make any new decision on or before 31 August 2016.
10. The applicant submits that they received advice from the respondent on 23 August 2016 that no further decision would be made by the respondent in respect of the application, and arising from the Information Commissioner's review. On 5 September 2016 they commenced proceedings in the Tribunal.
11. The applicant submitted that the commencement of these proceedings in the Tribunal prevent the respondent from making a fresh decision (without leave of the Tribunal). Reference was made to the case of Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68 (Barrett). The applicant took the Tribunal to paragraphs 47-53 and 57 - 60 of Barrett. Paragraph 46 sets the context for the proposition set out in the following paragraphs below. 46.It is, obviously, desirable, in fairness to the review applicant and for the orderly and efficient disposal of proceedings, that agencies not substitute a new and different reviewable decision for the reviewable decision that gave rise to the review application, and was the extant decision at the time the review application was lodged. 47.In our view, the scheme of the GIPA Act is such that there is no unilateral general power given to the agency to change a final decision. The Act has a complex scheme of review - internal review, the possibility of external review by the Information Commissioner, and external review by the Tribunal. It would undermine this scheme if an agency could unilaterally alter the decision at any stage of the review process. In our view, the provisions of the Act proceed on the basis that a decision once made binds the agency, and remains the decision under review, unless clear statutory mechanisms are utilised to alter it. 48.As to those mechanisms, we note the following instances. 49.Section 58(1), set out earlier in these reasons, lists the six types of final decisions an agency may make. Sub-sections (2) and (3) go on to provide: (2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for. (3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired. 50.It will be seen that sub-section (3) provides for the possibility of a 'further decision' in the circumstances set out there. 51.Another example is seen in s 63. In an agency fails to deal with an access application within the decision period (see s 57), the agency is deemed to have decided to refuse to deal with the application: s 63(1). But this does not prevent the agency from continuing to deal with the application and subsequently deciding the application and giving notice of its decision on the application. Such a decision is referred to as a 'late decision': s 63(2). 52.The Act also contains mechanisms for referral back and reconsideration. The Information Commissioner may make a recommendation of that kind to the agency. See ss 92 and 93. These powers proceed on the basis that the decision under review has a fixed, certain quality. 53.Similarly, the Tribunal may choose, prior to deciding the review application, remit the decision to the agency for reconsideration of the present decision, and the making of a new decision. The new decision may then become the subject of the review application. See Administrative Decisions Review Act 1997, s 65. 54.The agency in this instance chose to notify its change of decision in respect of item 6 as it related to John in the body of its detailed written submissions at para [64] in these words: On reflection, the respondent's position is that Mr Barrett should not have been informed no intelligence reports were held (s 58(1)(b)). Instead the respondent should not have confirmed or denied whether intelligence reports were held in relation to Mr Barrett (s 58(1)(f)). 55.This is not, we consider, an acceptable way of announcing a change of position. There should have been a clear separate notice given. Had that occurred, the Tribunal would then have been required to consider, after hearing from the review applicants, whether a new decision should now be permitted to be substituted as the decision under review, or the s 65 mechanism possibly used. As to the latter, directions could have been given to confine the time within which this was to occur so as not to delay unduly the finalisation of the proceedings in the Tribunal. 56.From our review of the file what appears to have occurred is that the Tribunal only became aware of the agency's change of position when it began to read the submissions as a whole, in circumstances where the timetable for submissions from both sides and a reply from the agency was completed in July 2013, almost eight months after the agency had announced its proposed change of decision. 57.In support of its right to substitute a new decision after a matter reaches the Tribunal, the agency's appeal submissions referred to the case-law in administrative review tribunals on the right of parties to rely on any relevant material recognised by s 63 of the ADR Act, including material that was not available or in existence at the time the matter was before the administrator. We referred to that case-law in our recent decision in Commissioner of Police v Joseph [2015] NSWCATAP 9 at [26]- [28]. 58.The present case is one where a new decision is sought to be substituted for the reviewable decision that founded the review application. It is not a case involving the lodgment of additional material in support of the decision that founded the review application. Nor is it a case of the kind Joseph was, where the decision (refusal of licence) remained the same but the agency sought to rely on a further ground additional to the two that it had previously relied upon, and which was founded in the same material that supported one of the other grounds. In this case the agency was seeking to invoke another statutory provision permitting a decision different in kind to the one that had founded the review application. 59.A proposal to substitute a new statutory decision requires a careful response, and the procedure set out in s 65 of the ADR Act would often be appropriate to use. If a new decision is to be made there needs to be a clear process followed that ensures that clarity prevails as to what the new reviewable decision is, and obtains the benefit of any incidents that attach to the making of a new decision, such as (where applicable) the provision of reasons, and the provision of any new material that is relied upon. 60.We accept the agency's submission that the Tribunal's one-word explanation of its decision to refuse to accede to the agency's application to make a different type of decision was not adequate. Nonetheless for the reasons we have given, the conclusion was not in the circumstances wrong. In our view, any change of decision in relation to an access application must fall within a head of power provided by the GIPA Act, or by other legislation such as the ADR Act when the matter is before the Tribunal.
12. The applicant submitted that the principles set out in Barrett are applicable to the current proceedings, in that there is no express or implied power available to the respondent under the GIPA Act to make a further decision outside the period prescribed under section 86 of the GIPA Act. It was submitted that as a result the 27 September 2016 'internal review' decision is not valid for the purposes of the GIPA Act and the Tribunal should review the matter based on the original 23 May 2016 decision.
13. In addition the applicant submitted that the actions of the respondent had caused prejudice as they were advised in writing on 23 August 2016 that no further decision would be made and as a result proceeded to commence external review proceedings in the Tribunal on 5 September 2016.
14. The applicant submitted that in respect of the lack of any pressing of appeal rights by the third party, there was a history of objecting to release of information by that third party in unrelated matters under Commonwealth legislation.
15. A final issue related to whether the third party (Whitehaven) had existing review rights to the Information Commissioner under the GIPA Act. It was submitted that in the absence of any pending or proposed review, the actions of the applicant in lodging the review to the Tribunal on 5 September 2016, extinguished any functions of the Information Commission in respect of the respondent's decision, by virtue of the operation of section 98 of the GIPA Act. 98 No review of decisions administratively reviewed by NCAT A decision is not to be the subject of review by the Information Commissioner under this Division if the decision is or has been the subject of an administrative review by NCAT

Respondents submissions.

1. The respondent submitted that the case of Barrett (as acknowledged by the applicant) is not specifically on point in the matter. The respondent submitted that the language of section 93 permits an agency to reconsider a review to give effect to the Information Commissioner's recommendation. (See paragraph 22 above).
2. The respondent submitted that it would be contrary to the purpose (or objects) of the GIPA Act, to interpret section 93 as precluding an agency which made a decision to withhold information, from making a further decision to release information to an applicant.
3. Section 3 of the GIPA Act provides: 3 Object of Act (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. (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. The respondent submitted that by not conducting an internal review within the 15 working days provided for in section 86 of the GIPA Act, the respondent is not precluded from making a decision after 15 working days.
5. It was submitted that such a situation (not deciding the matter within 15 working days) constitutes a deemed refusal, however section 63 (2) of the GIPA Act allowed the respondent to continue to deal with the matter. 63 Deemed refusal if application not decided within time ….. (2) The deemed refusal to deal with an application does not prevent the agency from continuing to deal with the application and subsequently deciding the application and giving notice of its decision (a late decision) on the application.
6. The respondent submitted that the third party (Whitehaven) is clearly a party who could be aggrieved by a decision of the Tribunal, and as a matter of fairness it would be incumbent on the Tribunal to invite Whitehaven to either appear and be heard, or apply to be joined as a party to the proceedings. This position is consistent with the provisions of section 104 (3) of the GIPA Act. (See paragraph 20 above).
7. The respondent submitted that such an approach would also be consistent with section 38 (2) of the Civil and Administrative Tribunal Act 2013 as per the need to accord procedural fairness. 38 Procedure of Tribunal generally (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
8. In addition the respondent submitted that the Tribunal needed to have regard to the principles set out in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 at (37) in order to avoid practical injustice.
9. At the conclusion of its submission the respondent then proposed a suite of consent orders which appear to be agreed by the parties notwithstanding the divergence of views set forth in the parties detailed submissions on the issue.

Consideration

1. In my view the rights of the third party (Whitehaven) are enlivened predominantly by the operation of section 104 (3) of the GIPA Act, rather than any great weight attaching to the other provisions referred to above.
2. The third party has had time to take action in the Tribunal under section 54 (6) and extending to section 80 (d) of the GIPA Act. Notwithstanding the external review to the Information Commissioner and subsequent further decision by the respondent, it was open to the third party to commence proceedings under the period allowed under section 101 (1) of the GIPA act, noting the import of section 98 and the words 'is or has been the subject of review by NCAT.'
3. The existence of an Information Commissioner review (pending or otherwise) does not remove or limit the rights of external review to the Tribunal under Part 5 Division 4 of the GIPA Act.
4. However the commencement of proceedings in the Tribunal has the practical effect of shifting the third party's rights from section 100 to section 104 of the GIPA Act. In my view the decision under review in the Tribunal at the time of filing is the decision of 23 May 2016. I have refrained from determining whether the subsequent decision of the respondent should be brought into the proceedings at this stage. This will become apparent by the form of orders at the conclusion of these reasons.
5. In my view the appropriate course of action is to provide the third party with a final opportunity to consider whether it seeks to be heard and exercise such latent rights as may exist at the time of filing on 5 September 2016.
6. In this regard I propose to make some of the orders which the parties seek, but to substitute some of the orders sought with fresh orders, having regards to the parties submissions and the reasons outlined above.
7. I am satisfied that not only is there jurisdiction to make such orders as preliminary orders in the matter, but that both parties were alerted to the fact that the Tribunal would consider these matters relating to both the future conduct of the matter, and the nature of the engagement (if any) of the third party.
8. I note that that subject to these third party rights, and the issue of which decision these proceedings relate to, that the parties are otherwise in agreement and that the respondent (subject to these proceedings) proposes to release the remaining information to the applicant.

Orders

1. I make the following orders: 1. On the date that this decision is published, the respondent already having been alerted by the Divisional Registrar to the date of publication, the respondent is to write to the third party Whitehaven Coal concerning these proceedings. 2. That correspondence shall draw the following matters to the attention of Whitehaven Coal: 1. These reasons for decision. 2. The existence of their right to appear and be heard in these proceedings under section 104 (3) of the Government Information (public Access) Act 2009. 3. That Whitehaven Coal if it decides to exercise its rights under section 104 (3), it must do so by advising the respondent and the Tribunal within seven (7) days of the date of the respondent's correspondence. 4. On receipt of a communication referred to in (2) (iii) (above), the matter will be listed for a Case Conference before Senior Member McAteer at 9:30am on 24 November 2016. 1. In the absence of any action by Whitehaven Coal under section 104 (3) of the GIPA Act in accordance with order (2) (iii), the decision of the respondent dated 23 May 2016 is set aside. 2. In substitution of that decision the respondent is to provide the applicant with access to documents: 31, 52, 53, 64, 72,73,74,75,76,77, 83 and 84. 3. The operation of Order 4 is contingent on order 2 (iii) and not to take effect before 16 November 2016. 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: 08 November 2016