The applicant provided lengthy submissions, most of which dealt with substantive rather than preliminary issues. In reviewing those submissions I have identified the following submissions as relevant to the preliminary issues. In summary, they were:
1. There is significant and substantial evidence of an offence under s 120 of the GIPA Act.
2. The Tribunal has jurisdiction to deal with review of the decisions under s 80; offences under s 111, 112, 116, 117, 118, 119 and 120; and systemic breaches of the GIPA Act namely ss 3(1)(b) and (c) and 3(2)(a) and (b), 5, 9(1), 12(1) and ((2), 14(2), 15, 16, 41, 43, 51, 52, 53, 55, 57, 60, 61, 63, 72, 105, 116, 117, 118, 120 and 126.
3. The Tribunal can review the respondent's conduct which falls under the following provisions of s 80 of the GIPA Act:
"(a) a decision that an application is not a valid access application,
…
(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,
…
(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)."
1. By virtue of s 64 of the Interpretation Act 1987, the offences under ss 111, 112, 116, 117, 118, 119 and 120 relate to reviewable decisions and the Tribunal has authority to deal with them.
2. The applicant disputed the reasonableness of the respondent's information searches.
The issue before the Tribunal is whether it has jurisdiction to determine the applicant's application. The Tribunal's review jurisdiction is conferred by s 100 of the GIPA Act and s 7 and 9 of the Administrative Decisions Review Act 1997 ("the ADR Act") (see also s 30(1) CAT Act).
Section 7 of the ADR Act provides:
"7 Meaning of "administratively reviewable decision"
(1) An administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction.
(2) For the avoidance of doubt (and without limiting subsection (1) or section 6):
(a) the conduct of an administrator (or a refusal by an administrator to engage in conduct) is an administratively reviewable decision if enabling legislation identifies that conduct or refusal as conduct or refusal over which the Tribunal has administrative review jurisdiction, and
(b) in its application to any such conduct or refusal by an administrator, any reference in this Act (however expressed) to an administrator making an administratively reviewable decision includes a reference to an administrator engaging or refusing to engage in the conduct.
Section 9 of the ADR Act provides:
"9 When administrative review jurisdiction is conferred
(1) The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator:
(a) in the exercise of functions conferred or imposed by or under the legislation, or
(b) in the exercise of any other functions of the administrator identified by the legislation.
(2) If enabling legislation makes provision for applications to be made to the Tribunal in respect of an administratively reviewable decision subject to certain conditions, the Tribunal has jurisdiction under the enabling legislation only if those conditions are satisfied.
(3) A provision of enabling legislation that provides for a decision of an administrator to be administratively reviewable by the Tribunal under this Act extends to the following:
(a) a decision made by a person to whom the function of making the decision has been delegated,
(b) if the provision specifies the administrator by reference to the holding of a particular office or appointment - a decision by any person for the time being acting in, or performing any of the duties of, the office or appointment,
(c) a decision made by any other person authorised to exercise the function of making the decision.
(4) If an administrator makes an administratively reviewable decision by reason of holding or performing the duties of an office or appointment and then ceases to hold or perform the duties of the office or appointment, this Act has effect as if the decision had been made by:
(a) the person for the time being holding or performing the duties of that office or appointment, or
(b) if there is no person for the time being holding or performing the duties of that office or appointment or the office no longer exists - such person as the President (or another person authorised by the President) specifies.
(5) Nothing in this section permits administrative review jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act."
Section 100 of the GIPA Act provides:
"100 Administrative review of decision by NCAT
(1) A person who is aggrieved by a reviewable decision of an agency may apply to NCAT for an administrative review under the ADR Act of the decision (referred to in this Division as an NCAT administrative review).
(2) An aggrieved person who is not the access applicant is not entitled to apply to NCAT for an NCAT administrative review of a decision if the person is still entitled to apply for an internal review of the decision under Division 2."
A "reviewable decision" is any decision listed in s 80 of the GIPA Act.
[2]
The Tribunal's jurisdiction with regard to improper conduct or offences under the GIPA Act
Section 112 of the GIPA Act provides:
"112 Report on improper conduct
If NCAT is of the opinion on the completion 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 on its own initiative bring the matter to the attention of:
(a) the Minister who appears to NCAT to have responsibility for the agency, or
(b) if the Minister who appears to NCAT to have responsibility for the agency was a party to the proceedings, the Information Commissioner.
As noted above, conduct is an administratively reviewable decision only if the enabling legislation (in this case the GIPA Act) identifies that conduct or refusal as conduct or refusal over which the Tribunal has administrative review jurisdiction. The GIPA Act does not identify "improper conduct" as a reviewable decision.
Moreover, the exercise of any power under s112 is expressly dependent upon an administrative review having been completed, which is not the case in these proceedings. The applicant therefore cannot rely on this to establish jurisdiction; jurisdiction must exist separately of s 112 in order to justify the holding of an administrative review.
Sections 116 to 120 create a number of offences including knowingly making a reviewable decision contrary to the Act, or directing someone to do so; improperly influencing the making of a decision on an access application; knowingly misleading or deceiving an officer of an agency for the purpose of obtaining access to government information; and concealing or destroying government information.
The applicant also submitted that s 64 of the Interpretation Act has the effect that the offence provisions referred to relate to reviewable decisions.
Section 64 provides:
"64 Every section of an Act a substantive enactment
Every section of an Act has effect as a substantive enactment without introductory words."
In Smalley v Motor Accident Authority of New South Wales [2013] NSWCA 318 the Court of Appeal held that the purpose of s 64 was to avoid repeating the enacting formula of words before each clause or section (at [43]). The section does not have the effect which the applicant argues for.
Section 128 of the GIPA Act provides that offences under the GIPA Act are dealt with summarily before the Local Court with the authority of the Director of Public Prosecutions or the Attorney General.
Accordingly the Tribunal does not have jurisdiction to deal with the alleged conduct or offences identified by the applicant.
[3]
Jurisdiction to review decisions under s 80 of the GIPA Act
The respondent's submission is that the only reviewable decision before the Tribunal was that government information was not held by the agency (GIPA Act s 80(e)).
The grounds for the application were stated by the applicant to be:
"Breach of GIPA Act and failure to promote GIPA Act
Breach of applicant's right to access personal information
(Information relating to the applicant)
Alleged offences under the Act
Sect. 112 Improper conduct complaint
The Minister is causing the applicant a deliberate detriment = unlawful discrimination against the applicant."
None of the above relate to s 80(e). In his submissions, however, the applicant states he seeks review under various provisions of s 80. I will deal with each of these individually.
[4]
A decision that an application is not a valid access application (s 80(a))
The respondent stated in its decision that the multiple applications it received, apart from the one received on 18 July 2018, were not valid applications as they were not accompanied by a fee of $30.
The applicant claims that he lodged 6 applications and 5 were accompanied by a cheque for the fee. He has not claimed, however, that each application was a separate application. His application to this Tribunal expressly states that it concerns the application which he lodged on 16 August 2018 and that the application stated:
"This application has been resubmitted six times."
According to the applicant, therefore, the six applications were identical. It follows, therefore, that in making a decision in respect of his application of 18 July, the respondent was in effect dealing with his application of 16 August. In my view there is no reviewable decision that the application which is the subject of review was not valid.
[5]
A decision to refuse to deal with an access application (s 80(c))
There is no evidence before me that indicates that the respondent refused to deal with an access application. The letter quoted above is to the contrary. Accordingly I am not satisfied that such a decision exists which could be reviewed in these proceedings.
[6]
A decision to provide access or to refuse to provide access to information in response to an access application (s 80(d))
It is evident from the letter, and the applicant does not dispute, that the respondent did provide access to certain information in response to the applicant's application. There is no statement in the letter refusing access to any information. Review may be sought by a person who is aggrieved by a reviewable decision (s 100(1)). The applicant has not stated that he is aggrieved by the provision of access to himself or that this forms part of his application for review. Accordingly I am not satisfied that there is a reviewable decision under this sub-section which gives the Tribunal jurisdiction.
[7]
A decision that government information is not held by the agency (s 80(e))
As noted above, the respondent stated that it searched for, but determined that it did not hold the information sought under items 1-6 and 8-10 of the application.
There was no mention of s 80(e) or the lack of adequate searches in the applicant's application to the Tribunal. In his submissions received on 29 January 2019, the applicant said that he disputed the sufficiency of the respondent's searches.
The Respondent's obligation to search for information in response to an access application is set out in s 53 of the GIPA Act:
"53 Searches for information held by agency
(1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received.
(2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency.
(3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically.
(4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures.
(5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources."
As held in Smith v Pittwater Council [2016] NSWCATAD 67, Camilleri v Commissioner of Police [2012] NSWADT 5 and other relevant decisions, the first question to be asked by the Tribunal is whether there are reasonable grounds to believe that the requested information exists and is information of the agency. The applicant bears the onus of demonstrating that there are reasonable grounds for believing that further information falling within the scope of the access request exists that has not been supplied: Stanley v Roads and Maritime Services (NSW) [2014] NSWCATAD 123 at [57].
The Tribunal has jurisdiction to review this decision.
[8]
A decision to refuse to confirm or deny that information is held by the agency (s 80(g))
There is no evidence before me that indicates that the respondent refused to confirm or deny that any information was held by it. Accordingly I am not satisfied that any such decision was made and this sub-section does not give the Tribunal jurisdiction in this case.
[9]
A decision to defer the provision of access to information in response to an access application (s 80(h))
There is no evidence before me that indicates that the respondent decided to defer access to any information in response to the applicant's application. Accordingly I am not satisfied that any such decision was made and this sub-section does not give the Tribunal jurisdiction in this case.
[10]
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) (s 80(i))
There is no evidence before me that indicates that the respondent decided to or decided not to provide access in a particular way. Accordingly I am not satisfied that any such decision was made and this sub-section does not give the Tribunal jurisdiction in this case.
[11]
Systemic breaches of the GIPA Act
Under this heading the applicant refers to ss 3(1)(b) and (c) and 3(2)(a) and (b), 5, 9(1), 12(1) and (2), 14(2), 15, 16, 41, 43, 51, 52, 53, 55, 57, 60, 61, 63, 72, 105, 116, 117, 118, 120 and 126 which he alleges have been breached.
It is possible that by mentioning systemic breaches the applicant is referring to s 111 of the GIPA Act which provides:
"111 Referral of systemic issues to Information Commissioner
NCAT may refer any matter to the Information Commissioner that NCAT considers is indicative of a systemic issue in relation to the determination of access applications by a particular agency or by agencies generally."
Section 111 does not, either expressly or impliedly, give the Tribunal jurisdiction to review a decision.
The offence provisions in ss 116, 117, 118 and 120 have been dealt with above.
Allegations of a breach of the GIPA Act do not provide a source of jurisdiction for the Tribunal to undertake a review. It has jurisdiction to review certain reviewable decisions, as explained above. This aspect of the applicant's submissions does not identify any source of jurisdiction on which he can rely.
[12]
Conclusion
The only ground relied on by the applicant which the Tribunal has jurisdiction to review is the ground under s 80(e) of the GIPA Act. The applicant did not expressly refer to s 80(e) in his application but the application contained a statement that his rights of access to information concerning himself had been breached. In his submissions concerning jurisdiction he stated that he disputed the reasonableness of the searches conducted by the respondent. Accordingly, I have determined to confine the scope of the application to this reviewable ground and dismiss the remainder of the application.
[13]
Orders
1. That part of the application for review which seeks review of:
"Breach of GIPA Act and failure to promote GIPA Act
…Alleged offences under the Act
Sect. 112 Improper conduct complaint
The Minister is causing the applicant a deliberate detriment = unlawful discrimination against the applicant"
is dismissed.
1. The proceedings are listed for directions at 2pm on 27 February 2019 concerning the filing of material by the parties relevant to a review of the respondent's decision under s 80(e) of the Government Information (Public Access) Act 2009.
[14]
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: 13 February 2019
On 11 December 2018 the Tribunal made directions listing the matter for a preliminary hearing on 29 January 2019 at 10 am to determine preliminary issues raised by the respondent, namely whether the Tribunal had the jurisdiction to deal with the application, and whether the application was vexatious and should be dismissed.
The respondent was directed to file and serve a notice of its application for summary dismissal, together with any evidence and submissions in support, by 7 January 2019.
The applicant was granted leave to file and serve evidence and submissions in reply by 25 January 2019. The applicant's submissions were not received by the Tribunal until the morning of the hearing.
On 29 January 2019 the applicant did not attend the hearing. He had previously applied to participate in the hearing by telephone. This application had been refused by another Senior Member. The applicant was sent a written notification of this decision on 25 January 2019 stating;
"1. The request by the applicant to participate in the hearing listed at 10.am on 29 January 2019 is refused.
The applicant does not live in a regional area, and no reason has been provided as to why he is unable to appear in person.
2. The request by the applicant to participate in the hearing listed at 10 am on 29 January 2019 by telephone is refused.
The applicant does not live in a regional area, and no reason has been provided as to why he is unable to appear in person."
The applicant then telephoned the Registry on 29 January and claimed that the Registry notice was misleading. On my direction he was put through to the hearing room.
The applicant sought an adjournment of the hearing for an unspecified period. After hearing from the parties, I refused the adjournment request. My reasons for doing so were:
1. The applicant had been notified in advance of the hearing date and was aware the hearing would proceed on that day;
2. The respondent was in appearance and both parties had filed submissions on the preliminary point to be determined;
3. While the Registry's communication to him was potentially confusing, he had chosen to telephone the Registry at the time of the hearing;
4. If I now granted leave for him to appear by telephone, which was his original request, and allowed a short adjournment before the hearing proceeded that day, there would be no apparent prejudice to the applicant.
The applicant then applied for me to recuse myself from hearing the application on the grounds that I was displaying bias against him. The grounds of the application appeared to be that I had refused the adjournment request.
The general test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question he or she is required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [11]. In that case the High Court also held that the decision maker has an obligation to hear and determine the matter unless reasonable apprehension of bias can be established (at [19]).
My considered refusal of the applicant's request could not, in my view, lead to a reasonable apprehension that I was unable to bring an impartial mind to bear on the issues before the Tribunal.
In the case of actual bias allegedly demonstrated at hearing, this can be found to exist where there is evidence that the decision-maker has prejudged the case against the applicant, or has acted with such partisanship or hostility as to establish that he or she has already determined what the findings will be. It is not sufficient to show that the decision-maker has expressed views adverse to the party's position at an early stage of the proceedings unless there is also proof that those views were incapable of being changed in the course of the proceedings (Drummond J in Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19; (2000) 96 FCR 125 at 133-134).
In my view the applicant did not establish the existence of actual or apprehended bias. Accordingly I refused the application to recuse myself from the preliminary hearing.
After hearing from the parties on how the matter should proceed, and offering the options of a hearing on the papers or a hearing at which the applicant could participate by telephone after a short adjournment, I determined that I would make a decision on the preliminary issues on the papers.