Walker v Pittwater Council

Considerations when determining whether to approve access applications

When determining whether to approve or not to approve the making of an access application, the Tribunal is exercising discretionary power in its general jurisdiction: Civil and Administrative Tribunal Act 2013 (NSW), s 29. While that discretionary power is not expressly conferred in the GIPA Act, it is implied by s 110(1): (1) NCAT may order that a person is not permitted to make an access application without first obtaining the approval of NCAT if NCAT is satisfied that the person has made at least 3 access applications (to one or more agencies) in the previous 2 years that lack merit. Such an order is a "restraint order".
As with all discretionary powers, the power implied under s 110(1) to approve or not approve an access application, must be exercised reasonably and in accordance with the subject matter, scope and purpose of the statute: Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 505 per Dixon J; [1947] HCA 21; R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62 ; (1979) 144 CLR 45 at 49; [1979] HCA 62; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26]; Lo v Chief Commissioner of State Revenue [2013] NSWCA 180; 87 ALJR 618 at [9].
The object of the GIPA Act is to "open government information to the public": GIPA Act, s 3(1). That object is achieved by various means including giving members of the public an enforceable right to access government information: GIPA Act, s 3(1)(b) and (c). The discretions conferred by the Act are to "be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information": GIPA Act, s 3(2)(b).
But there are limits on a person's right to access government information. For example, information does not have to be provided if there is an overriding public interest against disclosure or the information is not held by the agency: GIPA Act, s 58(1)(b) and (d). Five grounds on which an agency may refuse to deal with an application are set out in s 60: (1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason): (a) dealing with the application would require an unreasonable and substantial diversion of the agency's resources, (b) the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application, (b1) the applicant has previously been provided with access to the information concerned under this Act or the Freedom of Information Act 1989 , (c) the applicant has failed to pay an advance deposit that is payable in connection with the application, Note : See section 70. (d) the information is or has been the subject of a subpoena or other order of a court for the production of documents and is available to the applicant as a result of having been produced in compliance with the subpoena or other order.
These proceedings relate to the restrictions on a person's right to access government information when a restraint order has been made. The Tribunal may make a restraint order if a person has made at least three applications in the previous two years which "lack merit": GIPA Act, s 110(1). Under s 110(2) an application lacks merit if: (a) the agency decided the application by refusing to deal with the application in its entirety, or (b) the agency decided the application by deciding that none of the information applied for is held by the agency, or (c) the access applicant's entitlement to access lapsed without that access being provided (including as a result of failure to pay any processing charge payable).
A restraint order may apply to all access applications made by the person or may be limited by reference to particular kinds of information or particular agencies: s 110(3).
If the Tribunal is satisfied that a person "has repeatedly made applications for approval that are lacking in substance", the Tribunal may order that the person is not permitted to apply to NCAT for approval to make an access application: GIPA Act, s 110(6). The restraint order would then permanently prevent a person from making access applications to a particular agency or generally unless the Tribunal imposed a condition as to the period for which the restraint order was to operate: NCAT Act, s 58.
On the basis of the subject matter scope and purpose of the GIPA Act one basis for refusing to approve an access application is where the Tribunal is satisfied that an application is "lacking in substance." Repeatedly making such applications is the test in s 110(6) for determining whether to grant a permanent restraint order. It is logical to treat the substance of an application as a relevant factor when considering whether to approve a specific application.
It is significant when determining the scope of the discretion in s 110(1) to approve an access application, that s 110(6) does not refer to applications which are frivolous, vexatious or misconceived. The power to dismiss applications or complaints when they are "frivolous, vexatious, misconceived or lacking in substance" exists in several statutes. For example, s 109 of the GIPA Act states that: NCAT may refuse to review or to deal further with a review of a decision of an agency if NCAT is satisfied that the application for review is frivolous, vexatious, misconceived or lacking in substance.
Similarly, under s 55(1)(b) of the NCAT Act, the Tribunal may dismiss proceedings "if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance." Another example is the Anti-Discrimination Act 1977 (NSW); s 92(1)(a)(i).
The fact that a discretion is to be exercised according to particular considerations does not mean that if a separate discretion in the same statute does not list those considerations, they are irrelevant. In R v Australian Broadcasting Tribunal; Ex parte 2hd Pty Ltd [1979] HCA 62; (1979) 144 CLR 45 (27 November 1979) the High Court rejected a submission that where a decision maker was obliged by a statutory provision to take into account the public interest, that factor could not be taken into account when exercising another unconfined discretion. It could be argued that the fact that the terms frivolous, vexatious or misconceived are relevant when exercising the discretion under s 109 that does not mean that they are irrelevant when exercising the unconfined discretion under s 110(1).
But there is an additional factor in these proceedings that distinguishes them from the statutory framework in R v Australian Broadcasting Tribunal; Ex parte 2hd Pty Ltd [1979] HCA 62; (1979) 144 CLR 45. Under the GIPA Act the legislature has set out a different test for the making of a permanent restraint order from the test for dismissing or refusing to deal further with an application. That difference should be regarded as having some significance because of the maxim that an express reference to one matter indicates that other matters are excluded: Salemi v MacKellar (No 2) (1977) 137 CLR 396; 14 ALR 1. The inclusion of frivolous, vexatious and misconceived in s 109 and the absence of those terms from s 110(6), suggests that they should be excluded from consideration under s 110(6).
That conclusion is supported by the fact that the focus when considering whether to make a restraint order is on the frequency and merits of the application, rather than on the motivation or intention of the applicant: GIPA Act, s 110(2). That situation may be contrasted with the statutory regime under s 89K of the Freedom of Information Act 1982 (Cth) which gives the Information Commissioner power to declare a person to be a vexatious applicant. Because the federal statutory scheme is different in this respect from the scheme in NSW, the federal case law and guidelines are of limited relevance. (I note that this view is different from the view I expressed in Walker v Pittwater Council [2015] NSWCATAD 222 (13 October 2015)).
The term "lacking in substance" is not defined in the GIPA Act but has been interpreted in many cases including under the various federal and state anti-discrimination statutes: State Electricity Commission (Vic) v Rabel [1998] 1 VR 102 [31] - [45]; Rana v University of South Australia [2004] FCA 559; (2004) 136 FCR 344 at [10]; Gauci v Kennedy [2006] FCA 869 at [32]; Margan v University of Technology, Sydney [2003] NSWADTAP 65. See the discussion of these cases in Rees Rice and Allen, Australian Anti-Discrimination Law (2nd ed 2014, The Federation Press) at 776 to 781. The most commonly quoted definition is that an application will be lacking in substance if it is based on "an untenable proposition of law or fact": State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at 108-109 per Ormiston J.
Sir Ronald Wilson said in Assal v Department of Health Housing and Community Services, (1992) EOC 92-409, 78,897 at 78,900 that: … it is unwise postulate any rules intended to guide the exercise of the power in question. That exercise must be governed by the words of the statute itself in the context of the particular circumstances of the case.
In the context of the GIPA Act, if the Tribunal does not have jurisdiction or the application lacks merit because of a restriction or qualification on the applicant's rights under the GIPA Act, then the application will be lacking in substance. For example, an application will be lacking in substance if it meets any of the tests in s 110(2), if there is an overriding public interest against disclosure or if the information is not held by the agency. But it must always be borne in mind that an applicant has an enforceable right to access government information and the discretions conferred by the Act are to "be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information": GIPA Act, s 3(2)(b).
The number and frequency of access applications that a person has made may be relevant when determining whether to approve an application but those factors are less significant than the substance or merit of the application. That is because the Tribunal has a separate discretion under s 110(6) to order that a person who is the subject of a restraint order not be permitted to apply to NCAT for approval to make an access application. The test to be applied in that case is "if NCAT is satisfied that the person has repeatedly made applications for approval that are lacking in substance". (Emphasis added.)

Exercising the discretion in relation to the proposed applications

The Council did not address the merits or substance of the application in its written submissions except to state that Mr Walker is "attempting to circumvent the due diligence processes of Council by using the GIPA Act … as a form of review of the complaint issues decided by Pittwater Council." Instead, the Council focused on the number of applications Mr Walker had made (78 since 2006) and the effect of his applications on "the extremely limited resources of a small outer-metropolitan local government council." Since the making of the restraint order in March 2015, Mr Walker has applied for a further nine applications to be approved.
For the reasons which I have given, whether or not the applications are vexatious is irrelevant. Unreasonable interference with the agency's operations is not a restriction that the GIPA Act places on the making of an application. That restriction applies only to the form of access: GIPA Act, s 72.
One matter which the Council did not raise directly but which is potentially relevant is that dealing with the application would require an unreasonable and substantial diversion of the agency's resources. That is one of the grounds on which the Council may refuse to deal with an access application: GIPA Act, s 60(1)(a). Despite the number of applications Mr Walker has made it is not apparent from the applications themselves that they would have that effect nor did Council provide any evidence in support of that submission.
Subject to certain qualifications and restrictions, Mr Walker has an enforceable right to access government information. On the basis of the applications themselves and the parties' submissions, none of these qualifications or restrictions apply to the applications Mr Walker has sought approval to make.

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