Much of the Applicant's extensive written submissions were concerned with his complaints regarding the Respondent's application of the GIPA Act, his request for the Tribunal to refer the Respondent's conduct to the Minister pursuant to s112 of the GIPA Act, and submissions for the Tribunal to find that the Respondent had committed offences pursuant to sections 116, 117, 118 and 120 of the GIPA Act.
The Tribunal has previously considered the Applicant's complaints and allegations of misconduct against the Respondent and its officers in relation to access applications made by him under the GIPA Act in Zonnevylle v Department of Education [2017] NSWCATAD 101, Zonnevylle v Department of Education and Communities [2015] NSWCATAD 10, and Zonnevylle v Department of Education and Communities [2016] NSWCATAD 49 and, despite the Applicant's attempts to raise them as relevant to these proceedings, would not reconsider those issues or reopen those findings here.
Section 112 provides:
If NCAT is of the opinion as a result of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may bring the matter to the attention of the Minister who appears to NCAT to have responsibility for the agency.
The Tribunal's powers in relation to section 112 have been considered in a number of recent cases, including Zonnevylle v NSW Department of Finance & Services [2016] NSWCATAD 47, Turner v Commissioner of Police, NSW Police Force [2016] NSWCATAD 303, Saggers v Environment Protection Authority [2013] NSWADT 204, Shoebridge v The Office of the Minister for Police and Emergency Services [2014] NSWCATAD 189, Zonnevylle v Department of Education [2017] NSWCATAD 101, and Zonnevylle v Department of Finance, Services and Innovation [2017] NSWCATAD 186, and I adopt those principles here.
In the circumstances of this matter I am not satisfied that an officer of the Respondent has failed to exercise in good faith a function conferred on the officer by or under the GIPA Act. I therefore decline to make the requested referral under section 112 of the GIPA Act.
In relation to the Applicant's complaints and allegations regarding the Respondent's breaches of sections 116, 117, 118, and 120 of the GIPA Act, section 128 of the GIPA Act states:
128 Nature of proceedings for offences
(1) Proceedings for an offence under this Act or the regulations may be dealt with summarily before the Local Court.
(2) Proceedings for an offence under this Act or the regulations may only be taken by or with the authority of the Director of Public Prosecutions or the Attorney General.
I agree with the Respondent's submissions. The Local Court is the appropriate forum for dealing with any charge that an offence against any of these sections has been committed. The Tribunal has no jurisdiction to deal with these provisions, despite the Applicant's submissions to the contrary.
[2]
Orders
(1) The Respondent's reviewable decision of 24 August 2016 is affirmed.
(2) The application for a referral pursuant to section 112 of the Government Information (Public Access) Act 2009 is refused.
[3]
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: 30 June 2017
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 (NSW) and s. 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act).
In determining the application, the Tribunal is to decide what the correct and preferable decision is having regard to the material before it: ADR Act, s. 63(1). The Respondent bears the onus of satisfying the Tribunal that the decision it has made is the correct and preferable decision: GIPA Act, s. 105(1). The Respondent is not limited to defending the matter on the same basis as it made its original decision: Public Service Assn v Premier's Department [2002] NSWADT 277 at [57] and [59].
In determining the application, the Tribunal may affirm the decision, vary the decision, set aside the decision and make another decision in substitution for the decision set aside, or set aside the decision and remit the matter for reconsideration by the Respondent in accordance with any directions or recommendations of the Tribunal: ADR Act, s. 63(3).
The GIPA Act
An access applicant under the GIPA Act has a statutory right to access government information, and the Act instructs that discretions under it be exercised so as to enhance its objects. Its objects are stated to be:
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.
Section 3(2)(b) of the GIPA Act states:
(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.
Section 60 of the GIPA Act provides the circumstances under which an Agency can refuse to deal with an access application, in whole or in part:
60 Decision to refuse to deal with application
(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.
(2) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is not required to have regard to any extension by agreement between the applicant and the agency of the period within which the application is required to be decided.
(3) In deciding whether dealing with an application would require an unreasonable and substantial diversion of an agency's resources, the agency is entitled to consider 2 or more applications (including any previous application) as the one application if the agency determines that the applications are related and are made by the same applicant or by persons who are acting in concert in connection with those applications.
(4) Before refusing to deal with an access application because dealing with it would require an unreasonable and substantial diversion of an agency's resources, the agency must give the applicant a reasonable opportunity to amend the application. The period within which the application is required to be decided stops running while the applicant is being given an opportunity to amend the application.
(5) Notice of an agency's decision to refuse to deal with an access application must state the agency's reasons for the refusal.
(6) An applicant is not entitled to a refund of the application fee when the agency refuses to deal with the application.
The disqualification application
The Applicant sent correspondence to the Tribunal on 26 April 2017 stating "a requirement for you to disqualify yourself from Files 1610593 & 1610423", seeking my recusal on the basis that "it is not possible to have any faith in your required "independence" and "impartiality"." Identical correspondence was considered by me in Zonnevylle v Department of Finance, Services and Innovation [2017] NSWCATAD 186.
The Applicant's application for me to disqualify myself from these proceedings is expressed to be founded on my findings, reasons for decision and the decision in Zonnevylle v Department of Education [2017] NSWCATAD 101 which was published on 31 March 2017, which form the basis for the Applicant's complaints of my alleged impartiality, lack of good faith, improper conduct, lack of independence, false statements, and disputed findings.
As I expressed in Zonnevylle v Department of Education [2017] NSWCATAD 101 at [18] to [22]:
[18] I consider the allegation of "impartiality and lack of good faith" to be an assertion of bias. The Applicant does not state whether he is asserting actual or apprehended bias. The rule against bias is a principle of procedural fairness preventing decision makers from making decisions if they are actually or ostensibly biased. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that a Tribunal be independent and impartial.
[19] The general test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11], affirmed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [11]. The two step process involved was explained by the High Court in Ebner v Official Trustee in Bankruptcy in the following way at [8]:
First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
[20] For a decision-maker to disqualify himself or herself for apprehended bias, there must be an objective connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the decision-maker must not bring an impartial mind to bear on the issues that are to be decided: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [67] Gummow ACJ, Hayne, Crennan and Bell JJ.
[21] A decision maker has an obligation to hear and determine the matter unless reasonable apprehension of bias can be established: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [19]; Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 at [35]-[36].
[22] An application for disqualification should be determined by the decision-maker whose disqualification is sought, and should not involve a contest on the facts: Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 436; Wentworth v Graham [2003] NSWCA 240.
The considerations identified as relevant to the assessment of whether fulfilling an access application requires both an unreasonable and substantial diversion of resources include those referred to by O'Connor DCJ in Cianfrano v Premier's Department [2006] NSWADT 137 at [62], but as noted in Colefax v Department of Education and Communities (NSW) No 2 [2013] NSWADT 130 at [28] ("Colefax No 2"), really depend on the facts and evidence of a particular case.
The decision in Colefax No 2 highlighted the discretion involved in reaching a conclusion that providing the information sought would amount to an unreasonable and substantial diversion of the Respondent's resources, distinguishing the factors identified in Cianfrano on the basis of the different statutory scheme considered there under the former Freedom of Information Act. In my view, as expressed in Zonnevylle v Department of Finance, Services and Innovation [2017] NSWCATAD 186, exercising that discretion requires consideration of the concept of proportionality in balancing the Applicant's right to access information with the agency's ability to procure it in a timely and cost effective manner.
Section 64 of the GIPA Act allows for an agency to charge for dealing with an access application:
64 Processing charge for dealing with access application
(1) An agency may impose a charge (a "processing charge") for dealing with an access application at a rate of $30 per hour for each hour of processing time for the application.
Note : The decision to impose a processing charge is reviewable under Part 5.
(2) The "processing time" for an application is the total amount of time that is necessary to be spent by any officer of the agency in:
(a) dealing efficiently with the application (including consideration of the application, searching for records, consultation, decision-making and any other function exercised in connection with deciding the application), or
(b) providing access in response to the application (based on the lowest reasonable estimate of the time that will need to be spent in providing that access).
(3) The application fee of $30 paid by an applicant counts as a payment towards any processing charge payable by the applicant.
(4) Access to government information granted in response to an access application may be made conditional on payment of any processing charge imposed for dealing with the application.
While the Tribunal is not bound by the doctrine of precedent, that is, it is not formally bound to follow earlier decisions, the Tribunal should exercise caution in re-opening prior, considered rulings of an earlier Tribunal. As noted in Bevege v Commissioner of Police, NSW Police Force [2014] NSWCATAD 22 at [21]:
21 The threshold question that arises before considering any further these contentions is whether the present Tribunal should revisit the prior considered rulings. Counsel for the Administering Minister acknowledged the importance of different panels of a Division of the Tribunal being seen to deal consistently with the same or like questions. He acknowledged that the view might be taken that it would not be appropriate to revisit the previous, considered rulings.
22 In my view, a later Tribunal should exercise caution in reopening prior, considered rulings of an earlier Tribunal. Ordinarily a later Tribunal should adopt the ruling of the earlier Tribunal; and leave these questions to be finally determined within the Tribunal at the Appeal Panel level…
23 Normally a prior considered Tribunal ruling should only be reopened if a new, significant argument is raised before the later Tribunal. This is not such a case.
Pursuant to section 105 of the GIPA Act the burden of establishing that the decision is justified lies on the Respondent.
The Tribunal's task is to make the correct and preferable decision in this matter having regard to all the material before it.
With the exception of the title of this application including the Tribunal file number relevant to these proceedings, 1610593, there is no reference in the content of the disqualification application correspondence to any matter or issue before the Tribunal in these proceedings. The 11 page application contains a number of complaints and allegations regarding my findings in Zonnevylle v Department of Education [2017] NSWCATAD 101, and unfounded and unsupported allegations implying general corruption and misconduct, but nothing which presents a logical submission of any objective connection relevant to my hearing and determination of these proceedings.
It was open to the Applicant to appeal my reasoning and decisions in Zonnevylle v Department of Education [2017] NSWCATAD 101 on any of the bases he now complains of in these proceedings, but he has not done so. To the extent that the Applicant's basis for my disqualification stems from my interpretation and application of the GIPA Act in a previous matter, that is a question of comity and a matter of consistency in Tribunal decisions as discussed in Rittau v Commissioner of Police, NSW Police Service [2000] NSWADT 186; ALZ v SafeWork NSW (No 2) [2016] NSWCATAD 121; BY v Director General, Attorney-General's Department [2002] NSWADT 79; Ku-ring-gai Council v NSW Department of Premier and Cabinet [2016] NSWCATAD 181, and not a basis for disqualification.
Accordingly, I refuse the Applicant's application that I disqualify myself.