Zonnevylle v Department of Customer Service; Zonnevylle v Secretary, Department of Education

Jurisdiction and the Tribunal's task

1. The decisions made by the respondent agencies are decisions that the applications are invalid and as such are reviewable by the Tribunal: s 80(a) of the GIPA Act. The Tribunal's jurisdiction to conduct this review derives from s 100 of the GIPA Act, read with s 28 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) and s 9 of the Administrative Decisions Review Act 1997 (ADR Act). The respondent agencies bear the burden of establishing that their decisions are justified: s 105(1) of the GIPA Act.
2. The Tribunal's task, briefly stated, is to decide what the correct and preferable decision is as to whether the applications are valid, having regard to the material before it, including relevant factual material and any applicable written or unwritten law. The Tribunal re-makes the decision, as if it were the administrator. The material before the Tribunal may include material not before the original decision-maker and the Tribunal's decision is focused on the present position, not the position at the time of the original decision: s 63 of the ADR Act; YG v Minister for Community Services [2002] NSWCA 247 at [25]; Frugtniet v Administrative Decisions Tribunal (Appeal Panel) [2005] NSWCA 257 at [45], Commissioner of Police v Danis [2017] NSWCATAP 7 at [31].
3. The material before the Tribunal includes: 1. a statement of Ms Stathis, Manager of Information, of the DoE; 2. a statement of Ms Givney, Manager of Ministerial Services, of the DCS; and 3. written submissions from the applicant (with attached correspondence), the respondent agencies and the Information Commissioner.
4. The germane statutory provisions are considered later in these Reasons.

Factual Background

1. On 2 April 2020, the applicant sent applications for access to government information, by email, to the designated email address of: 1. the DoE at 6:29pm; and 2. the DCS at 10:50pm.
2. The DoE and the DCS respectively received those emails.
3. On 3 April 2020, the Tribunal published its Reasons for Decision and the Restraint Orders in Department of Education v Zonnevylle [2020] NSWCATAD 96. The Restraint Orders were in the following form: (1) Pursuant to s.110(1) of the Government Information (Public Access) Act 2009 (Act) Peter Zonnevylle is not permitted to make an access application under the Act to an agency listed in paragraph 2 without first obtaining the approval of the Civil and Administrative Tribunal of New South Wales. (2) The order in paragraph 1 is limited by reference to: (a) Department of Education; (b) Department of Finance, Services and Innovation; (c) Department of Justice; (d) every other agency, insofar as an application requests government information concerning the operation, administration or personnel of any agency carrying out the functions of an agency listed in (a) - (c), regardless of machinery of government changes.
4. The time of publication of the Restraint Orders on 3 April 2020 is not in evidence.
5. On 8 and 9 April 2020 respectively, the DoE and the DCS each notified the applicant that they considered the application made to them was invalid as it had not been made with the prior approval of the Tribunal, as (they contended) was required by the Restraint Orders and s 110 of the GIPA Act.
6. The applicant subsequently applied to the Information Commissioner for review of the decisions made by the DoE and the DCS that the applications were not valid access applications.
7. On 14 July 2020, the Information Commissioner notified the applicant that she was satisfied that the decisions made by the DoE and the DCS were justified because the Restraint Orders were made with effect from the beginning of 3 April 2020 (i.e. 12am on that day) and the applications were not "actually received" by each agency for the purposes of s 41(3) of the GIPA Act until the commencement of business hours that day.
8. On 11 August 2020, the applicant filed applications for review of the decisions of DoE and DCS to treat the applications as invalid.
9. Pursuant to directions made by the Tribunal on 25 September 2020: 1. the DoE filed a Statement of Ms Stathis. The effect of her evidence is that the email attaching the applicant's application to the DoE was sent at 6:29pm on 2 April 2020; that such applications are dealt with by the DoE's Information Access Unit; that the Information Access Unit is staffed between 9am and 5pm; and that the staff in that Unit may commence as early as 7:30am and finish as late as 6pm; 2. the DCS filed a Statement of Ms Givney. The effect of her evidence is that the applicant's application to the DCS was lodged with the DCS at 10:50pm on 2 April 2020; such applications are typically dealt with by the GIPA team within the DCS; their typical business hours are 9am to 5pm weekdays; and the GIPA team follows a general principle that applications received by email after standard business hours (i.e. 5pm) are deemed to have been received on the next business day.

Relevant legislation

1. Set out below are the germane provisions of the GIPA Act, the Electronic Transactions Act 2000 (NSW) (ET Act) and the Interpretation Act 1987 (NSW) (Interpretation Act). GIPA Act 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. 9 Access applications (1) A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information. 41 How to make an access application (1) An application or other request for government information is not a valid access application unless it complies with the following requirements (the "formal requirements") for access applications - (a) it must be in writing sent by post to or lodged at an office of the agency concerned or made in the manner approved by the agency under subsection (2), (b) it must clearly indicate that it is an access application made under this Act, (c) it must be accompanied by a fee of $30, (d) it must state the name of the applicant and a postal or email address as the address for correspondence in connection with the application, (e) it must include such information as is reasonably necessary to enable the government information applied for to be identified. ... (2) An agency may approve additional facilities for the making of an access application or the payment of an application fee. (3) An access application is not considered to have been received by an agency until it is actually received by the agency. (emphasis added) 51 Initial decision as to validity of application (1) When an agency receives an application for access to government information that it appears is intended to be an access application, the agency is to decide whether the application is a valid access application and is to notify its decision to the applicant by either - (a) acknowledging receipt of the application as a valid access application, or (b) notifying the applicant that the application is not a valid access application. (2) An agency's decision as to the validity of an application must be made and notified to the applicant as soon as practicable after the agency receives the application and in any event within 5 working days after the application is received. (3) An acknowledgement of receipt of a valid access application must include the following - (a) the date by which the application is required to be decided (subject to any suspension or extension of the time for deciding an application), (b) a statement that the application will be deemed to have been refused if not decided by the required date, (c) the following statements about the inclusion of information in the agency's disclosure log (unless the agency considers it unlikely that information about the application will be included in the disclosure log) - (i) a statement that information concerning the application is likely to be included in the agency's disclosure log and that the applicant can object to this, (ii) a statement about the right of review under Part 5 of a decision by the agency to include information in its disclosure log despite the applicant's objection, (d) such details of rights of review in connection with access applications as the Information Commissioner may from time to time direct. (4) Acknowledging receipt of an application as a valid access application does not prevent the agency from subsequently deciding that the application is not a valid access application. (5) An agency's decision that an application is not a valid access application is presumed to be correct, subject to any review of the decision under Part 5. (emphasis added) 52 Agency assistance with invalid applications (1) The notification of an agency's decision that an application is not a valid access application must - (a) include a statement of the reason why the application is not a valid access application (including reference to the relevant provisions of this Act), and (b) if a reason is non-payment of the required application fee, invite the applicant to pay the fee, and (c) if a reason is failure to provide required information, invite the applicant to provide the information, and (d) notify the applicant of the right of review under Part 5 that applies in relation to a decision that an application is not a valid access application. (2) The application becomes a valid access application if the applicant pays the required fee or provides the required information (as appropriate), and is then deemed to have been made when the fee or information was received by the agency. (3) An agency must provide advice and assistance, so far as it would be reasonable to expect the agency to do so, to assist an applicant to provide such information as may be necessary to enable the applicant to make a valid access application. … 57 Required period for deciding application (1) An agency must decide an access application and give the applicant notice of the agency's decision within 20 working days (the "decision period") after the agency receives the application. ... (emphasis added) 63 Deemed refusal if application not decided within time (1) If an agency does not decide an access application within time, the agency is deemed to have decided to refuse to deal with the application and any application fee paid by the applicant is to be refunded. (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. (3) The obligation to refund an application fee to the applicant is not affected by the making of the late decision and the late decision does not entitle the agency to payment of an application fee. (4) No processing charge can be imposed for dealing with an access application if the application was not decided within time (whether or not a late decision is made on the application). (5) Despite this section, the obligation to refund an application fee to the applicant does not apply to any application that was transferred to or from the agency. 110 Orders to restrain making of unmeritorious access applications (1) NCAT may order that a person is not permitted to make an access application without first obtaining the approval of NCAT (a restraint order) if NCAT is satisfied… … (7) While a restraint order is in force against a person, any application for government information made to an agency in contravention of the order is not a valid access application. ET Act 13A Time of receipt (1) For the purposes of a law of this jurisdiction, unless otherwise agreed between the originator and the addressee of an electronic communication - (a) the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee, or (b) the time of receipt of the electronic communication at another electronic address of the addressee is the time when both - (i) the electronic communication has become capable of being retrieved by the addressee at that address, and (ii) the addressee has become aware that the electronic communication has been sent to that address. (2) For the purposes of subsection (1), unless otherwise agreed between the originator and the addressee of the electronic communication, it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee's electronic address. (3) Subsection (1) applies even though the place where the information system supporting an electronic address is located may be different from the place where the electronic communication is taken to have been received under section 13B. Interpretation Act 5 Application of Act (1) This Act applies to all Acts and instruments (including this Act) whether enacted or made before or after the commencement of this Act. (2) This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned. ... 36 Reckoning of time (1) If in any Act or instrument a period of time, dating from a given day, act or event, is prescribed or allowed for any purpose, the time shall be reckoned exclusive of that day or of the day of that act or event. ... 76 Service by post (1) If an Act or instrument authorises or requires any document to be served by post (whether the word "serve", "give" or "send" or any other word is used), service of the document - (a) may be effected by properly addressing, prepaying and posting a letter containing the document, and (b) in Australia or in an external Territory - is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected on the seventh working day after the letter was posted, and (c) in another place - is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected at the time when the letter would have been delivered in the ordinary course of post. (2) In this section - Working day means a day that is not - (a) a Saturday or Sunday, or (b) a public holiday or a bank holiday in the place to which the letter was addressed.

Were the applications prohibited by the Restraint Orders?

1. I turn now to consider the first contention of the respondent agencies, namely that the applications were invalid because they were made at a time when the applicant was prohibited by the Restraint Orders and s 110 (7) of the GIPA Act from making such applications.
2. This requires this consideration of two questions: (1) when were the applications made? (2) were the Restraint Orders in force at that time?

Submissions

1. The submissions of the respondent agencies may be summarised as follows: 1. applications are made when they are received by an agency; 2. s 41(3) of the GIPA Act provides that an access application is not considered to have been received by an agency until it is "actually received" by the agency; 3. an application is not "actually received" until a time at which the agency is able to act on the application (i.e. the following working day in the case of an application received after business hours). This is because: 1. the use of the word "actually" in the phrase "actually received" serves to exclude any default or deeming provisions such as s 76 of the Interpretation Act or s 13A of the ET Act; 2. such a construction is consistent with a legislative regime in which the receipt of the application has timing consequences for subsequent steps and in particular: 1. the obligation on an agency to notify the applicant of its decision as to the validity of an application within 5 working days of receipt of the application (s 51(2) of the GIPA Act); 2. the requirement that transfers of access applications between agencies occur within 10 working days of the receipt of the application (ss 45 and 46 of the GIPA Act); 3. the obligation on an agency to provide information held by the agency being limited to information held by the agency at the time the application is received (s 53 of the GIPA Act); 4. the obligation upon an agency to decide an access application and give notice of that decision within 20 working days after receipt of the application (s 57(1) of the GIPA Act), failing which there is a deemed refusal under s 63 following which no processing charge can be imposed (s 63(4) of the GIPA Act); 1. the legally enforceable right to be provided with access to Government Information arises when there is a valid access application (Department of Communities and Justice v Zonnevylle [2020] NSWCATAP 126); 2. such a construction is consistent with the reckoning of time throughout the GIPA Act by reference to "working days". In particular reference was made to ss 45, 46, 51(2), 57 83, 86, 90, 92A and 101; 1. whilst, for the purposes of s13A of the ET Act, the emails transmitting the applications were capable of being retrieved on the evening of 2 April 2020, s 13A has no application to determining the time at which applications for information are taken to be received for the purposes of the GIPA Act because: 1. s 41(3) and s 13A are not inconsistent and s 41(3), being an express provision for the purposes of the GIPA Act which relates to the receipt of an application rather than an email, prevails over s 13A which is a deeming provision; 2. alternatively, s 41(3) and s 13A are inconsistent and s 41(3) prevails because it is specific in its operation to access applications and thus prevails over the general application of s 13A; 1. thus, the applications were not received until 3 April 2020.
2. The submissions of the Information Commissioner may be summarised as follows: 1. it is implicit from s 41 that an application is made at the time it is received; 2. the effect of s 41(3) is that an application is not received until it is "actually received"; 3. three constructions are available as to when an application is received by email: 1. when the email containing the application has entered the agency's GIPA email inbox (first construction); 2. when the application is first accessed by an employee of the agency (second construction); 3. when the application is both accessible by the agency and the agency is in a position to actually do something with the application. For applications received outside of ordinary business hours, this occurs at the start of ordinary business hours on the next working day (third construction); 1. if s 13A of the ET Act operates so as to determine when the emails were received, then the first construction is the correct construction; 2. however s 13A of the ET Act does not operate because: 1. the first construction would render otiose the phrase "actually received" in s 41(3) of the GIPA Act and the Tribunal would strive for a construction which gives meaning to every word chosen by the legislature; 2. the requirement that the application be 'actually received' suggests the deliberate exclusion of deeming provisions such as s 13 of the ET Act and (in the context of postal communications) s 76 of the Interpretation Act; 1. the second construction gives full effect to the words "actually received" by directing attention to when, as a matter of fact, the agency's employees first received the email. In this regard the Information Commissioner submitted that the Tribunal could infer that this occurred at the start of business hours on 3 April 2020; 2. the third construction also gives effect to the phrase "actually received", but goes further in reflecting the broader legislative context of the GIPA Act in that: 1. the receipt of an application triggers a series of obligations upon an agency, some of which are to be performed within short time-frames, for example, the obligation to decide the validity of the application within 5 working days of receive (s 51(2)). This supports an inference that the obligations should only arise once the agency is in a position to consider the application and do something with it; 2. the GIPA Act consistently uses the expression "working days" as the means of measuring the time in which obligations are to be performed (e.g. ss 45(2), 51(2), 56(4A), 57(1), (2) and (5), 83(3) and 86(1) and (2)). This supports a construction that "actually received" operates by reference to the working days and hours of the agency'; 1. thus, the Tribunal should adopt the second or third construction and find that the applications were not "actually received" until the start of business hours on 3 April 2020.
3. The applicant's submissions may be summarised as follows: 1. the GIPA Act is beneficial legislation and should be interpreted accordingly; 2. the respondent agencies' construction is contrary to the beneficial objects of the GIPA Act; 3. the terms "received" and "actually received" are not defined in the GIPA Act; 4. the interpretation of those terms involves a discretion which is to be exercised as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information (s 3(2)(b) of the GIPA Act); 5. the GIPA Act refers to "working days", but not "working hours" or "business hours"; 6. the practical issues raised by the respondents concerning time running on applications received after business hours are addressed by s 36(1) of the Interpretation Act which excludes the day of receipt from the calculation of time; 7. there is no dispute that an email that is sent directly to an agency is "actually received" by that agency; 8. the emails attaching the applications were actually received on 2 April 2020.

Consideration

1. I accept the submissions of the respondent agencies, which were not contested by the applicant, that applications are made when they are received by the agency. This is implicit in the text of s 41 (and supported by ss 51 and 57).
2. The concept of receipt is affected by s 41(3) which requires that the application has been "actually received". The parties to this proceeding are at issue as to the correct construction of the phrase "actually received".
3. The competing constructions of the phrase "actually received" are: 1. the ordinary meaning of that phrase namely, to denote receipt which has actually occurred (ordinary meaning). This stands in contrast, for example, to receipt which is deemed or constructive; and 2. actual receipt together with an ability to act upon an application (respondent agencies construction).
4. The Appeal Panel in Department of Communities and Justice v Zonnevylle [2020] NSWCATAP 126 at [32] to [36] described the approach to be adopted to statutory construction in the following terms: Contemporary approach to statutory interpretation 32. In Statutory Interpretation in Australia, Pearce and Geddes (9th ed, 2019, LexisNexis Butterworths) at 33 regard the following passage from the High Court decision of SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405; (Kiefel CJ, Nettle and Gordon JJ) at [14], as summarising the contemporary approach to statutory construction: The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. 33. Considerations of context and purpose include the consequences of adopting the ordinary or grammatical meaning: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 384; 153 ALR 490 at [78]: The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. 34. In SZTAL, at [37]-[39], Gageler J emphasised that context, in the broad sense, is only useful to the extent that it assists in understanding the meaning of the text: … The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility 'if, and in so far as, it assists in fixing the meaning of the statutory text'. (Citations deleted and emphasis added.) 35. The highlighted quote comes from Federal Cmr of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at 519 [39]. If an understanding of context does not assist in fixing the meaning of the statutory text, it is not useful. 36. Pearce and Geddes go on, at 33, to state that " . . . the application of this approach will in most cases lead a court to having to make what is commonly referred to as a 'constructional choice'." The authors then explain that the constructional choice is sometimes between ". . . one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised."
5. The starting point for determining the correct construction is the text of s 41 of the GIPA Act. Section 41(1)(a) provides that one of the requirements for the validity of the application is that it is in writing and: 1. sent by post to the agency; or 2. lodged at an office of the agency; or 3. made in a manner approved by the agency under s 41(2) (e.g. email). There is no issue that each of the agencies, the DoE and the DCS, approved the making of access applications by email.
6. Thus, s 41 provides for at least three methods of delivery of an application - post, in person lodgement and email.
7. On the ordinary meaning, the phrase "actually received" operates in the following ways in s 41: 1. if the application is in fact received by an agency (i.e. an application sent by post arrives, an application is lodged in person or an email attaching the application is received by the agency's designated email address), then the application has been "actually received" by the agency; 2. if the application is not in fact received (i.e. an application is sent by post but is not received by the agency, or an email attaching an application is sent but is not received by the agency (e.g. because it has been mis-addressed)), then the application has not been "actually received" by the agency.
8. Thus the phrase "actually received" operates so as to avoid the situation in which an application has been sent but has not been received being treated as a valid application. The purpose of its inclusion is obvious - in a situation where an application is sent by post or email but is not received, there can be no utility in having time run on the processing the application.
9. The text of s 41 excludes the operation of s 76 of the Interpretation Act which, but for the expression of a contrary intention in s 41(3), would deem that applications sent by post and which were not received by the agency had been received (see s 5(2) of the Interpretation Act).
10. There is nothing in the text of s 41 which suggests that the words "actually received" should be construed as meaning actual receipt, together with an ability to act upon an application. Indeed, the respondents' construction involves the implication of words into the text of s 41(3) where there is no need to do so: see Department of Communities and Justice v Zonnevylle [2020] NSWCATAP 126 at [64]-[67] and the authorities there cited.
11. The context in which s 41(3) appears does not suggest a different result.
12. It may be accepted that the GIPA Act imposes time frames which commence upon the receipt of an access application. However those time frames are not so tight as to compel the conclusion that the words "actually received" should be interpreted in the manner suggested by the respondent agencies. This is particularly so when the effect of s 36(1) of the Interpretation Act is to provide that time does not begin to run until the day following receipt of the application.
13. Nor is such an interpretation suggested by the various sections in the GIPA Act which refer to "working days". The fact that the legislature has turned its mind in those other provisions to the concept of "working days" but has not done so with respect to s 41(3) tells against the respondent agencies' construction. Further, those provisions relate to "working days" and not "working hours".
14. As set out above, various submissions have been made as to the operation of s 13A of the ET Act. However, that section, in contrast to s 76 of the Interpretation Act, does not operate so as to deem receipt to have occurred despite it not having occurred. Rather, in a situation such as the present where an agency has designated an email address, s 13A (1)(a) and (2) operate on the basis that such actual receipt has occurred and provides that the time of receipt is the time when the email reaches the agency's electronic address.
15. For all of the above reasons, the phrase "actually received" has its ordinary meaning of actual receipt and should not be construed as meaning actual receipt together with an ability to act upon an application.
16. The application of that ordinary meaning requires the conclusion that the emails were received by the respondent agencies at 6:29pm and 10:50pm on 2 April 2020. The same conclusion follows from the application of s 13A of the ET Act. It follows that the applications were received at those times.

Submissions

1. The submissions of the respondent agencies may be summarised as follows: 1. the Restraint Orders were made on 3 April 2020; 2. the Restraint Orders should be taken as having been in force from the first moment of that day because: 1. the decision which was given force by the Restraint Orders was a 'general decision' (see s 29(1) and (3) of the NCAT Act); 2. s 61 of the NCAT Act provides: A general decision ... takes effect on the date on which it is given or such later date as may be specified in the decision; 1. the use of the phrase "on the date" rather than, for example, "at the time" suggests that the decision will be taken to have effect for the entirety on that date.
2. The submissions of the Information Commissioner (which took a different course from the respondent agencies and from that taken by the Information Commissioner in the external review) may be summarised as follows: 1. there is a difficulty in the position taken by the respondent agencies, because: 1. it would mean that an order made by the Tribunal would operate with retrospective effect during the period from the start of the day on which it was made until the actual time it was made on that day; 2. the Tribunal should strive to avoid a construction which would allow such a retrospective operation, absent clear language compelling a legislative intention that there be such a retrospective operation; 3. there is no such clear language in s 61 of the NCAT Act and in Jamal v Commissioner of Police [2017] NSWCA 7 at [12] Basten JA noted in passing that the effect of s 61 was that the decision "was effective immediately"; 1. the words in s 61 of the NCAT Act, "takes effect on the date on which it is given", are similar to the words used in UCPR r 36.4(1) (and earlier rules of Court), save that UCPR r 36.4(3) expressly empowers a court to order that an order take effect at an earlier time; 2. it is an established principle that such power should not be exercised where to do so would interfere with a substantive right (relying upon Australian Rail, Tram and Bus Union v Metro Trains Melbourne [2020] FCAFC 81 at [16]); 3. even if an order were to be in effect from the start of the day on which it were made, it does not necessarily follow, for the purposes of s 110 of the GIPA Act, that the order would be "in force" against a particular person as: 1. "in force" suggests that the order can be enforced against that person; 2. there cannot be enforcement of orders against a person before those orders are actually made.
3. The Information Commissioner's ultimate submission was that the Restraint Orders were first "in force" against the applicant at the particular time on 3 April 2020 when those orders were made and published to the parties.
4. The applicant's submissions may be summarised as follows: 1. this issue does not arise because the applications were received on 2 April 2020; 2. the construction for which the respondent agencies contend fails to promote the objects of the GIPA Act and is contrary to law (including that the applicant must be "guilty" prior to "conviction"); 3. the correct and preferable construction is that the Restraint Orders took effect at the time at which they were made on the date on which they were made, consistent with s 61 of the NCAT Act and UCPR r 36.3(3).

Consideration

1. In view of my conclusion that the applications were received by the respondent agencies on 2 April 2020 it is not necessary to resolve this issue.
2. Nevertheless, I share the concerns expressed by the Information Commissioner. In the absence of a clear expression of a statutory intention (of which there is none) that orders of the Tribunal may have a retrospective operation, such orders should be regarded as being in force for the purposes of s 110 of the GIPA Act no earlier than the moment at which they are published to the parties.
3. It follows that the applications are not invalid on the basis of the first contention advanced by the respondent agencies.

Are the applications invalid because of s 41(1)(e) of the GIPA Act?

1. I turn now to consider whether the applications are invalid because of the second contention advanced by the respondent agencies, namely, the operation of s 41(1)(e) of the GIPA Act.
2. Section 41(1)(e) provides that a necessary pre-condition for a valid access application is that the access application "must include such information as is reasonably necessary to enable the government information applied for to be identified".

Submissions

1. The submissions of the respondent agencies may be summarised as follows.
2. First, the purpose of the requirement in s 41(1)(e) is to provide "certainty as to when the 'legally enforceable right' to be provided with access to government information arises" and to ensure that "an agency has sufficient information to enable it to identify, consider and make a decision about the government information applied for": Department of Communities and Justice v Zonnevylle [2020] NSWCATAP 126 at [43].
3. Secondly, several items within each of the access applications failed to comply with s 41(1)(e). The contended bases of such failures are considered in detail below.
4. Thirdly, if one paragraph of an application fails to comply with the requirements of s 41(1)(e) of the GIPA Act, this is sufficient to render invalid the whole of that access application: Department of Communities and Justice v Zonnevylle [2020] NSWCATAP 126 at [42]-[43].
5. Fourthly, as the Restraint Orders have been in force since 3 April 2020 the applicant is unable to regularise his applications so as to meet the requirements of a valid access application from 3 April 2020, unless the applicant were to seek and obtain the permission of the Tribunal in accordance with the Restraint Orders.
6. The Information Commissioner's submissions may be summarised as follows: 1. the failure of any part of an application to comply with the requirement in s 41(1)(e) would lead to the entirety of that application being invalid: Department of Communities and Justice v Zonnevylle [2020] NSWCATAP 126 at [42]-[43]; 2. whilst the decisions of the respondent agencies did not include invalidity on the basis of non-compliance with s 41(1)(e), there does not appear to be any obstacle to the respondent agencies raising this ground of invalidity in an administrative review, even if it was not relied upon by the decision maker; 3. in the ordinary course, if an agency were to decide that an application is invalid on the basis of s 41(1)(e) it would be required to invite the applicant to provide the further information (s 52(1)(c) of the GIPA Act) and to provide advice and assistance in so far as it would be reasonable to expect the agency to do so (s 52(3) of the GIPA Act). This ordinary course was reflected in Department of Communities and Justice v Zonnevylle [2020] NSWCATAP 126 at [63] where the Appeal Panel agreed with the observations of the Tribunal below that: The conclusion that an application may be rendered invalid because a minor part of the request for documents does not provide sufficient information to enable the information sought to be identified would not have extreme or inconvenient consequences as the application could easily be rendered valid by the provision of further information, or the withdrawal by the applicant of the relevant part of the request. 1. such reasoning would not apply in the unique circumstances of the present case because if the applications were invalid for non-compliance with section 41(1)(e), the applicant would not be able to render them valid by providing further information. This is because of the operation of section 52(2) of the GIPA Act which provides in so far as is presently relevant: The application becomes a valid access application if the applicant ... provides the required information ... and is then deemed to have been made when the ... information was received by the agency. 1. thus if the applicant were to provide further information which cures what would otherwise be an invalid part of an application, that the application would then be deemed to have been made when that information was received by the agency, which would post-date the making of the Restraint Orders. It would follow that the applications would be invalid by reason of the operation of s 110(7) of the GIPA Act.
7. The applicant's submissions may be summarised as follows: 1. the application of s 41(1)(e) involves the subjective exercise of discretion, with such discretion to be exercised in accordance with the purpose of the Act; 2. the claims of invalidity made under s 41(1)(e) were not made as part of the decisions under review; 3. the claims of invalidity made under s 41(1)(e) are disputed. The bases of this dispute are discussed in detail below.

Consideration

1. The claim of invalidity on the basis of non-compliance with s 41(1)(e) did not form part of the decisions made by the respondent agencies.
2. However, that is not an impediment to it being considered by the Tribunal as a potential basis for invalidity of the applications. This is because the Tribunal's decision is not restricted to the matters before the original decision maker or the grounds on which the original decision was made.
3. In Department of Communities and Justice v Zonnevylle [2020] NSWCATAP 126, the Appeal Panel at [38] described s 41(1)(e) in the following way: The "requirement to identify government information" in s 41(1)(e) is that the application "must include such information as is reasonably necessary to enable the government information applied for to be identified". That provision requires the agency to make an evaluative judgment as to whether the information provided enables the government information applied for to be identified: s 41(1)(e). If it does not, the application will be invalid.
4. I turn now to consider the items of each application which are in issue. In doing so, I am mindful that the respondent agencies bear the onus of satisfying the Tribunal that the applicant has failed to provide "such information as is reasonably necessary to enable the government information applied for to be identified".
5. I have taken into account the clarifications and further information provided by the applicant in his submissions to the Tribunal and which are discussed below. This is consistent with the task of the Tribunal being to reach the correct and preferrable decision on the material before it as at the date of its decision.
6. I also note that the respondent agencies' submissions are based solely on the text of the particular items. The respondent agencies have not adduced evidence from any officer as to the information that it is suggested is required, or why that information is reasonably necessary to allow identification of the government information for which application has been made.

Item 2

1. Item 2 is a request for "Documents provided to Zonnevylle prior to Jan 13, 2020 where the discretionary approval/additional facilities to receive GIPA access applications by email was denied to Zonnevylle".
2. The DoE's submission is that a question arises as to what documents the applicant is referring to and in particular whether this is intended as a request for any and all documents ever provided by the DoE to the applicant before 13 January 2020.
3. The applicant's submissions may be summarised as follows: 1. on 13 January 2020 the DoE wrote to the applicant in response to an earlier application made by the applicant (13 January 2020 letter); 2. the 13 January 2020 letter, a copy of which was attached to the applicant's submissions, included: "Your application is invalid because you have not posted it"; 3. the requirement that the applicant post applications must have arisen because the DoE decided to deny him the ability to make applications by email; 4. he seeks access to any documents provided to him notifying him of the decision to deny him the ability to make applications by email.
4. In my view it is plain that the documents sought are all documents: 1. provided by the DoE to the applicant prior to 13 January 2020; and 2. by which the applicant has been denied "discretionary approval/additional facilities to receive GIPA access applications".
5. I am not satisfied that there has been a failure by the applicant to include information reasonably necessary to enable identification of the government information for which application has been made.

Item 3

1. Item 3 is a request for "Those 'notices' not received by [the applicant] from IA Unit / Pendergast / DEC 'because of the confusion with you using several email addresses for the one matter' Pendergast notice GIPA20-013 Jan. 13, 2020".
2. The DoE's submission is that it is unclear how the DoE could know what notices had not been received by the applicant.
3. The applicant's submissions may be summarised as follows: 1. the 13 January 2020 letter contains the following statement by the DoE to the applicant: Because of the confusion with you using several email addresses for the one matter which caused you not receive notices (sic) ...; 1. to have made that statement that DoE must have been aware of notices that the applicant did not receive.
4. In my view, the applicant is seeking information to which the DoE has referred in the 13 January 2020 letter, namely the notices which the DoE asserts he did not receive. The item contains a reference to that letter namely "Prendergast notice GIPA20-013 Jan. 13, 2020".
5. I am not satisfied that there has been a failure by the applicant to include information reasonably necessary to enable identification of the government information for which application has been made.

Item 5

1. Item 5 is a request for "Document / list detailing all workplace emails for staff of: DEC IA Unit; Legal directorate."
2. The DoE's submission is that there is a lack of clarity as to whether this a request for email addresses, or an account of all emails of all staff of the Information Access Unit and Legal Directorate.
3. The Applicant submitted inter alia that "workplace emails" is a reference to email addresses.
4. To the extent there was any ambiguity, it has been removed by the applicant's indication that the request is for email addresses.
5. Thus, I am not satisfied that there has been a failure by the applicant to include information reasonably necessary to enable identification of the government information for which application has been made.

Item 9

1. Item 9 is a request for: Reference GIPA application database excel spreadsheet. Spreadsheet entries between: i. Jan 2018 - Dec. 2018 ii. Jan. 2019 - Dec. 2019 iii. Jan 2020 - April 2020 with only the following entries: GIPA File No. Legal File No. Case officer Search officer name Total amount Processing hours Decision maker name
2. The DoE submitted that there is a lack of clarity as to whether the applicant is requesting access to: 1. data regarding all applications processed by the DoE during the period January 2018 to April 2020, or only applications relating to the applicant; 2. a pre-existing document, or that information be compiled in a particular manner?
3. The applicant submitted, inter alia, that there is no qualification requiring only the applicant's personal information. Thus, the applicant has clarified that this item is not limited to information relating to the applicant.
4. I am also not satisfied that information from the applicant as to whether he seeks access to a pre-existing document or that the information be complied in a particular manner is reasonably necessary to allow the information applied for to be identified. The information sought is clearly set out in the request. The manner of its presentation is not relevant to s 41(1)(e).
5. Thus, I am not satisfied that there has been a failure by the applicant to include information reasonably necessary to enable identification of the government information for which application has been made.

Item 3

1. Item 3 of the DCS application is in similar terms to item 5 of the DoE application and similar submissions are made by the respondent agencies and the applicant.
2. For the reasons set out above with respect to item 5 of the DoE application, I am not satisfied that there has been a failure by the applicant to provide information required within the terms of s 41(1)(e) of the GIPA Act.

Item 8

1. Item 8 is a request for: "Public funds used for external legal services for GIPA application matters for: a. Jan 2013 to Dec 2013 b. Jan 2014 to Dec 2014 c. Jan 2015 to Dec 2015 d. Jan 2016 to Dec 2016 e. Jan 2017 to December 2017 f. Jan 2018 to Dec 2018 f. Jan 2019 to Dec 2019 g. Jan 2020 to April 2020".
2. The DCS's submission is that there is a lack of clarity as to whether the request is for access to information relating to funds expended by the DCS in particular, or the government in general with respect to GIPA Act matters.
3. The applicant has submitted, inter alia, the application has been made on the DCS and requires access to information from that agency which suggests that the request is for access to information relating to funds expended by the DCS in particular.
4. Thus, I am not satisfied that further information is reasonably necessary within the terms of s 41 (1) (e) of the GIPA Act.

Section 52 of the GIPA Act

1. I turn now to consider the submissions made by the respondent agencies and the Information Commissioner concerning the effect of ss 52 and 110 of the GIPA Act.
2. As noted above, I have taken into account the clarifications and further information provided by the applicant in his submissions to the Tribunal.
3. The fact that the applicant has provided further information during the course of this proceeding does not in my view, attract the operation of s 52(2) and in particular does not deem the applications to have been received when the further information was received by the respondent agencies as part of this proceeding.
4. This is because s 52(2) operates only if the applicant provides 'the required information'. That is information which the applicant has been invited by the agency to provide in circumstances where there is a notification from the agency which includes a statement that a reason for the invalidity of the application is a failure to provide required information: see s 52(1)(a),(c),(2) of the GIPA Act. In the present case the notifications from the respondent agencies to the applicant did not include that a reason for the invalidity of the application was a failure to provide required information and there has been no invitation to provide that information. Thus, s 52(2) has not been enlivened.
5. For all of the above reasons, I do not accept the contention of the respondent agencies that the applications are invalid because of s 41(1)(e) of the GIPA Act.

Other matters

1. There are two miscellaneous matters.
2. First, the applicant's submissions were replete with allegations against various agencies, individuals within agencies and members of this Tribunal. Such allegations are not relevant to the matters which the Tribunal was required to decide and have not been taken into account.
3. Secondly, subsequent to the making of orders that these proceedings be determined on the papers and the completion of a timetable set for the filing of submissions, the applicant filed an interlocutory application dated 19 December 2020 in each of these proceedings seeking a variety of orders. Many of the orders sought are directed at the Tribunal or a particular member of the Tribunal. Many are in the form of interrogatories. Others are demands that the Tribunal take certain steps. There also appears to be some overlap in the orders sought in the interlocutory application and in an interlocutory application considered by Principal Member Suthers in Zonnevylle v Department of Education [2020] NSWCATAP 162. The orders sought are not relevant to the matters for decision in the proceedings and in many respects concern previous proceedings concerning the applicant - in this regard, see Zonnevylle v Department of Education [2020] NSWCATAP 162 at [11] - [20]. Further, dealing with the interlocutory application would be contrary to the guiding principle in s 36 (1) of the NCAT Act that the Tribunal is to resolve the real issues in dispute between the parties in a just quick and cheap manner. The interlocutory application should be dismissed.

Orders

1. The Tribunal makes the following orders: 1. The decisions under review are set aside. 2. The application for orders in the General Application Form dated 19 December 2020 and filed by the applicant is dismissed.

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

Amendments 18 February 2021 - [100] Typographical Error. "9 December" corrected to "19 December". 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: 18 February 2021