When applying to the Office of Environment and Heritage for information under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act), Mr Shoebridge also applied for a 50% discount in any processing charges. He is entitled to a discount "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": GIPA Act, s 66.
The Office of Environment and Heritage told Mr Shoebridge that they would make a decision about the discount after they had examined the information he had applied for and when they were ready to make a decision about access to the information. Mr Shoebridge applied to the Tribunal for a review of that decision. He submitted that an agency was required to determine his application for a public benefit discount when requiring him to pay an advance deposit of the anticipated processing charges.
The Tribunal found that it did not have jurisdiction to review the decision to delay making a determination because it was not one of the 'reviewable decisions' set out in s 80 of the GIPA Act. The Tribunal found that it only had jurisdiction to review the decision to require an advance deposit.
The Tribunal went on to consider Mr Shoebridge's submission that an agency is required to determine an application for a public benefit discount when requiring an applicant to pay an advance deposit. The Tribunal found at [34] that an agency does not have to decide whether to give a discount until the access application is determined and a processing charge imposed. In our view, it was not necessary for the Tribunal to give an opinion about that issue because it was not relevant to the question of whether the Tribunal had jurisdiction.
Mr Shoebridge has appealed to the Appeal Panel from the Tribunal's decision. His main ground of appeal is that the Tribunal should have found that an agency is required to determine an application for a public benefit discount when requiring an advance deposit. He made the point that an early assessment of processing fees gives an applicant the opportunity to properly assess the potential financial impact of an application. He maintains that that interpretation is consistent with the object of the GIPA Act.
The Office of Environment and Heritage submitted that the public benefit discount only applies to a processing charge actually imposed by the agency. As the agency does not impose a charge until after it has dealt with the application, no decision could be made at an earlier stage.
The Information Commissioner exercised her right to appear and be heard in these proceedings: GIPA Act, s 104(1). One of her roles is "to promote public awareness and understanding of [the] … Act and to promote the object of [the] Act": GIPA Act, s 17(a). She submitted that an agency could determine an application for a discount at any stage in the process. An early consideration of an application would enable applicants to make an informed choice about their application and, where appropriate, consider amending the application to reduce the scope of the information sought: GIPA Act, s 49(1) and (2).
Even if Mr Shoebridge had persuaded the Tribunal that an agency must determine an application for a discount when requiring an advance deposit, a failure or refusal to determine the application at that stage is not a reviewable decision. It follows that the Tribunal's conclusions about the meaning of s 66 of the GIPA Act were not an essential part of its reasoning. We have no power to give a binding advisory opinion about the meaning of that provision.
None of Mr Shoebridge's grounds of appeal identify an error which could have made any difference to the Tribunal's decision. For that reason, the appeal is dismissed.
[2]
The facts and the law
On 9 September 2016 Mr Shoebridge applied to the agency for access to the following information:
Any reports that have been produced out of the Office of Environment and Heritage's Aboriginal cultural heritage reform, including a summary of submissions received
All communications with Local Aboriginal Land Councils regarding transferring responsibilities of Aboriginal heritage decisions under the National Parks and Wildlife Act from the Office of Environment and Heritage to Local Aboriginal Land Councils
In his access application Mr Shoebridge applied for the public benefit discount and included relevant supporting information: GIPA Act, s 42(b). He wrote that:
The Aboriginal cultural heritage reform process commenced in 2013, with broad public interest about the future management of Aboriginal cultural heritage in NSW. It is in the interest of open and transparent government to publically release any reports that have been produced from this reform process.
Within 5 working days of receiving an application, the agency must decide whether the application is a valid application and notify the applicant of that decision: GIPA Act, s 51. On 14 September 2016 the Office of Environment and Heritage notified Mr Shoebridge that his application was valid. At the same time, the agency advised Mr Shoebridge that the estimated cost of dealing with the application, at the rate of $30 an hour, was $570. The agency required Mr Shoebridge to pay an advance deposit of $285, which was 50% of the estimated processing charge: GIPA Act, s 68.
The advice about the estimated processing charge and the requirement for an advance deposit were consistent with an agency's powers to require an advance deposit and to estimate the processing charges for work expected to be done in dealing with the application: GIPA Act, s 64, s 68(1) and s 68(3)(b). The maximum advance deposit that can be required is 50% of the amount that the agency estimates to be the total processing charge for dealing with the application: GIPA Act, s 69.
An applicant is entitled to a 50% reduction in any processing charge imposed by an agency "if the agency is satisfied that the information applied for is of special benefit to the public generally": GIPA Act, s 66. In response to Mr Shoebridge's application for a discount, the Office of Environment and Heritage wrote that:
A decision in respect of your request for a 50% discount on the basis of the public benefit is unable to be made, as no records have as yet been identified. In order to be satisfied that the information applied for is of special benefit to the public generally, I need to examine the relevant records. Once a decision about access is ready to be made, your comments about the public interest in the information you have requested access to, and your request for a 50% discount will be considered.
The Office of Environment and Heritage explained that, in their view, the discount was not to be determined on the basis of the information applied for, but rather on the basis of the information to which he is ultimately given access. Our understanding of the position taken by the Office of Environment and Heritage is that they would seek any relevant supporting information from Mr Shoebridge and respond to the application for a discount just before, or at the same time, as giving notice of the agency's decision about the access application under s 57(1) of the GIPA Act.
Mr Shoebridge's position is that an agency is obliged to determine his application for a discount on the basis of the information he applied for not on the basis of the information eventually obtained. As the agency knows what information he has applied for when it requires him to pay an advance deposit, that is when his application for a discount should be determined.
In this case the Tribunal was exercising its "administrative review jurisdiction": Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 28(2)(b) and 30. The main circumstances in which it may exercise that jurisdiction are set out in s 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act). In summary, the Tribunal has administrative review jurisdiction if "enabling legislation provides that applications may be made to the Tribunal for an administrative review under [the ADR Act] … of any decision (or class of decisions) made by the administrator". Section 100 of the GIPA Act gives "a person who is aggrieved by a reviewable decision of an agency" the right to "apply to NCAT for an administrative review under the ADR Act of the decision …".
Section 80 of the GIPA Act lists the decisions made by an agency which are reviewable by the Tribunal.
80 WHICH DECISIONS ARE REVIEWABLE DECISIONS
The following decisions of an agency in respect of an access application are
"reviewable decisions" for the purposes of this Part:
(a) a decision that an application is not a valid access application,
(b) a decision to transfer an access application to another agency, as an agency-initiated transfer,
(c) a decision to refuse to deal with an access application (including such a decision that is deemed to have been made),
(d) a decision to provide access or to refuse to provide access to information in response to an access application,
(e) a decision that government information is not held by the agency,
(f) a decision that information applied for is already available to the applicant,
(g) a decision to refuse to confirm or deny that information is held by the agency,
(h) a decision to defer the provision of access to information in response to an access application,
(i) a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant),
(j) a decision to impose a processing charge or to require an advance deposit,
(k) a decision to refuse a reduction in a processing charge,
(l) a decision to refuse to deal further with an access application because an applicant has failed to pay an advance deposit within the time required for payment,
(m) a decision to include information in a disclosure log despite an objection by an authorised objector (or a decision that an authorised objector was not entitled to object).
In his application to the Tribunal Mr Shoebridge claimed that a single decision, "the decision not to impose a processing charge, require an advance deposit and not to reduce the processing charge", "is a reviewable decision pursuant to s 80(j) and (k)" of the GIPA Act. He also wrote that:
The issue on review is a narrow one. It relates to the time at which the application for a special benefit discount must be determined by an agency.
[3]
Tribunal's decision
The Tribunal noted at [21], that there was a dispute about which reviewable decision or decisions were before the Tribunal for determination. Apart from the decision to require an advance deposit, Mr Shoebridge submitted to the Tribunal that the agency had made two other reviewable decisions under s 80(k) and 80(c): a decision to refuse a reduction in a processing charge and "a decision to refuse to deal with an access application (including such a decision that is deemed to have been made)".
The Tribunal ultimately accepted the submission from the Office of Environment and Heritage that the only reviewable decision before the Tribunal was the decision to require an advance deposit: s 80(j). The Tribunal affirmed that decision.
The Tribunal also addressed Mr Shoebridge's submissions about the decision to delay determining the application for a reduction in a processing charge. The Tribunal decided at [29] that, as the agency had not yet imposed any processing charge, there had been no decision to "refuse a reduction in a processing charge". In reaching that conclusion, the Tribunal agreed with the Tribunal's reasoning in National Tertiary Education Union v Southern Cross University [2015] NSWCATAD 151 at [36] that:
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.
The Tribunal also addressed Mr Shoebridge's submission that the decision to delay determining the application for a reduction in a processing charge was reviewable under s 80(c). It was suggested that because the Office of Environment and Heritage did not determine his application for a public interest discount within the 20 working day time limit allowed, it is deemed to have refused to deal with his application: GIPA Act, s 63(1) and s 80(c). The Tribunal concluded that the agency had not made a deemed refusal decision.
[4]
Grounds of appeal
Mr Shoebridge appealed on questions of law and sought the Appeal Panel's leave to appeal on other grounds: NCAT Act, s 80(1) and (2)(b). In his Notice of Appeal Mr Shoebridge identified the following grounds of appeal on questions of law:
1. That the Tribunal erred in holding that no reviewable decision was before the Tribunal.
2. That the Tribunal erred in failing to apply the Appeal Panel decision of Commissioner of Police v Danis [2017] NSWCATAP 7 and instead applying obiter comment from first instance decision of National Tertiary Education Union v Southern Cross University [2015] NSWCATAD 151 that decision on a special interest discount is not a preliminary decision capable of review.
3. That the Tribunal erred in failing to hold that the Respondent's failure to grant a special benefit or special interest to public discount at the time of requiring an advance deposit was a reviewable decision.
4. That the Tribunal erred in failing to hold that an advance deposit is part of a processing charge.
5. That the Tribunal erred in not holding that a decision to grant or refuse, or fail to determine, a special benefit or special interest to the public discount is a preliminary decision of an agency subject to review by the Tribunal.
6. That the Tribunal erred in not holding that a decision to require an advance deposit is a preliminary decision of an agency subject to review by the Tribunal.
7. That the Tribunal erred in holding that a decision on a special benefit or special interest to the public discount should be determined on the information obtained rather than the information sought.
8. That the Tribunal erred in purporting to affirm the decision under review having concluded it had no jurisdiction.
Mr Shoebridge did not rely on ground 8 in his written submissions or expressly on appeal. Our understanding of the remaining grounds of appeal is that they all relate to the Tribunal's decision that the agency had not made a reviewable decision under either s 80(c) or (k).
[5]
Appeal Panel's jurisdiction
A party may appeal from an "internally appealable decision": Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(1). The Tribunal's decision to affirm the decision by the Office of Environment and Heritage to require an advance deposit is "an internally appealable decision". It is a decision made by the Tribunal in proceedings for an administrative review decision: Civil and Administrative Tribunal Act 2013 (NCAT Act), s 32(1)(a). Mr Shoebridge told the Appeal Panel that he did not intend to apply for a review of the decision to require an advance deposit. We note that no ground of appeal relates to that part of the Tribunal's decision.
The Tribunal made two other "internally appealable" decisions. The first was that the agency had not made a reviewable decision as described in s 80(k), "to refuse a reduction in processing charge". The second was that the agency had not made a reviewable decision as described in s 80(c), to refuse to deal with an access application.
[6]
No jurisdiction under s 80(k)
The Tribunal decided that the Office of Environment and Heritage had not made a decision to refuse a reduction in a processing charge. None of Mr Shoebridge's grounds of appeal dispute that finding either as a question of fact or a question of law. His submission was that the agency was obliged to make such a decision. That question did not arise for consideration.
[7]
No jurisdiction under s 80(c)
The Tribunal also decided that the Office of Environment and Heritage had not made a decision to refuse to deal with an access application. Again, none of Mr Shoebridge's grounds of appeal dispute that finding either as a question of fact or a question of law.
[8]
Meaning of s 66 of the GIPA Act
The Tribunal also addressed the issue Mr Shoebridge had raised about the time at which the application for a discount must be determined by an agency. That was not an issue that the Tribunal needed to decide when determining whether it had jurisdiction. Even if Mr Shoebridge had persuaded the Tribunal that an agency must determine an application for a discount when requiring an advance deposit, a failure or refusal to determine the application at that stage is not a reviewable decision under s 80(c) or (k) of the GIPA Act. Nor can the Tribunal send a decision back to an agency to make the decision again, unless the decision is an "administratively reviewable decision": ADR Act, s 63(3)(d) and s 65.
In our view, the Tribunal's findings about when a decision in response to an application for a discount must be made were not an essential part of the Tribunal's decision. Lawyers sometimes call such opinions obiter dicta. Those opinions are not internally appealable decisions. Neither the Tribunal nor the Appeal Panel has power to give a binding advisory opinion about the meaning of a legislative provision.
Mr Shoebridge is concerned about the policy implications of the agency's decision to delay determining his application for a discount. But his application to the Tribunal does not give rise to a consideration of those issues. We note that the Information Commissioner has published guidelines about reductions in processing charges under the power given to her in s 17(d) of the GIPA Act.
[9]
Reconstitution of Appeal Panel
The appeal was heard on 30 January 2018. At the conclusion of the hearing the Appeal Panel reserved its decision. Subsequently it became necessary for the President of the Tribunal to reconstitute the Appeal Panel because the presiding member became unavailable: NCAT Act, s 52.
[10]
Orders
1. Leave to appeal on a question other than a question of law is refused.
2. The appeal is dismissed.
[11]
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
[12]
Amendments
06 June 2018 - Initial of Hennessy LCM, Deputy President removed as per Supreme Court of NSW Judgement Production Guidelines
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: 06 June 2018