Information Access Case Note: Walker v Northern Beaches Council [2022] NSWCATAD 8

Read the decision here:  Walker v Northern Beaches Council [2022] NSWCATAD 8

Summary

The NSW Civil and Administrative Tribunal (Tribunal) received an application made by Mr Philip Walker (the Applicant) under s. 110(1) of the Government Information (Public Access) Act 2009 (GIPA Act) for the Tribunal’s approval to make an access application to Northern Beaches Council (the agency).  The Applicant was subject to an order made on 5 February 2015 under s. 110(1) that restrains him from making any access application to the agency without first obtaining the Tribunal’s approval. Section 110(4) required the Applicant to first serve notice of the application on the agency and the Information Commissioner before applying to the Tribunal for approval to make an access application under s. 110(1).  The Tribunal was satisfied that the Applicant did not notify the Information Commissioner prior to making the application to the Tribunal, and this meant the application did not comply with this jurisdictional fact that must exist before the Tribunal’s jurisdiction to deal with an application for approval is enlivened. The Tribunal summarily dismissed the application on the basis that the Tribunal did not have jurisdiction to deal with the application.

What you need to know

The decision sets out a three-step process for an applicant under section 110(4) of the GIPA Act.

The decision explains the jurisdictional requirements for the Tribunal’s power in s. 110(4) to approve the making of an access application to an agency where the applicant is under the force of a
s. 110(1) restraint order. The decision confirms that s. 110(4) of the GIPA Act establishes as a jurisdictional fact, the requirement for an applicant to serve notice on the agency and the Information Commissioner of the intention to make the application to the Tribunal, and that this is to occur prior to the making of the application to the Tribunal.  

The Tribunal clarified that s. 110(4) goes to the entitlement given by the GIPA Act to make an application for government information to an agency under the GIPA Act. The Tribunal stated that the Applicant had a subsisting right to make an access application which is to be given considerable weight, given the s. 3 objects. The Tribunal’s discretion to approve the application is to be exercised having regard to the relevant considerations set out in s. 110(5A).

The decision also confirms that the Tribunal has power to make a ‘general’ order under s.  29(3) of the Civil and Administrative Tribunal Act 2013 (NSW).

Legislative background

GIPA Act

Section 3 objects

Section 110   Orders to restrain making of unmeritorious access applications

Civil and Administrative Tribunal Act 2013

Sections 29(3) and 29(4)

Factual background

Restraint order

On 5 February 2015, the Tribunal, differently constituted, made an order under s.  110(1) of the GIPA Act which restrained the Applicant from making any access application to Pittwater Council without first obtaining approval of the Tribunal: Pittwater Council v Walker [2015] NSWCATAD 34. That order is not limited by reference to any of the matters referred to in s.  110(3) of the Act, including to any specific period of time. On 12 May 2016, Pittwater Council was amalgamated with the then Manly and Warringah Councils to form the Northern Beaches Council. The transitional provisions under
cl. 34(2)(b) of the Local Government (Council Amalgamations) Proclamation 2016 Act provide that anything done by or in relation to a former council is taken to have been done in relation to the new council. By operation of that clause the s. 110 order made by the Tribunal on 5 February 2015 restrains the Applicant from making an application to the Northern Beaches Council without approval of the Tribunal.  

Application to the Tribunal for approval of the access application

On 9 August 2021 the Applicant made an application to the Tribunal for approval of the making of an access application, seeking the following information: “Public Access, into the future, to All Pittwater Council Websites, as at Amalgamation into the Northern Beaches Council”.  The Applicant served a copy of the application on the agency when the application was made to the Tribunal. In response to the Tribunal’s correspondence to the Commissioner attaching the application, on 25 August 2021, the delegate of the Information Commissioner advised the Tribunal that the Applicant did not serve notice of the application to the Information Commissioner under s. 110(4).

Tribunal findings

Tribunal’s power under s. 110

The Tribunal (at [25]-[30]) confirmed the Tribunal’s powers for approving applications under
s. 110(1)-(7) and stated that:

The Tribunal’s power to deal with this application arises under the power implied by section 110(1) of the GIPA Act to grant approval to a person subject to a restraint order to make an access application. The power is not express: it is implied by the words that permit the Tribunal to make a restraining order (… “without first obtaining the approval of NCAT”… ): at [26]. Emphasis Added.

 The Tribunal further stated as follows:

•  An application for approval to make an access application is a “general application” for a “general decision” within the meaning of ss. 29(3) and 29(4) of the CAT Act, involving the exercise of the Tribunal’s “general jurisdiction” as defined in s. 29(1) of the CAT Act
• The Applicant’s application does not fall within the Tribunal’s administrative review jurisdiction as it does not involve the review of a decision of an administrator within the meaning of s. 9 of the Administrative Decisions Review Act 1997
• The power to grant approval to make an access application is discretionary in nature, implied by the word “may”; and this discretion is to be exercised having regard to the considerations set out in s. 110(5A)
• The exercise of the Tribunal’s discretionary power in s. 110(1) must be exercised in accordance with the objects of the GIPA Act under s. 3.

Jurisdictional fact required by s. 110(4)

The Tribunal at [42]-[47] set out the principles for determining a “jurisdictional fact” enunciated in Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190 at [163] to [175], citing from Gleeson CJ and McHugh J in Abede v The Commonwealth (1999) 197 CLR 510  that a jurisdictional fact in general terms is “a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question”.

In applying these principles to s. 110(1), the Tribunal at [48] commented that the object in s. 3(2) “must be kept firmly in mind” by its “statutory command which requires NCAT to interpret and apply the provisions of the GIPA Act so as to further this object, and to exercise any discretion conferred … as far as possible, so as to facilitate and encourage, promptly and at the lowest possible cost, access to government information”.

The Tribunal at [49] confirmed that an order made under s. 110(1) does not extinguish the right to access information conferred on a person by s. 9(1) either expressly or by implication and stated that “is apparent from the fact the person subject to the restraint order may apply to the Tribunal for approval to exercise the right. The right must therefore continue in existence despite the regulation of its exercise.”  In this regard, the Tribunal went on to say at [54] that the Applicant has a “subsisting right” to make an access application for government information which is to be given considerable weight, given the objects in s. 3 of the Act. However, as the Applicant is subject to a restraint order imposed under the Act because of previous unmeritorious access applications, his is ability to exercise that right is now subject to the three-step process in s. 110(4):

Step 1: the giving of notice of the proposed application to the subject agency and the Information Commissioner

Step 2: the obtaining of approval from NCAT to make an access application. This requires an application to NCAT for such approval to be made under section 110(1).

Step 3: if approval to make the proposed access application is given by NCAT, the applicant may make an access application to the agency in the usual way: at [51].

The Tribunal at [55]-[57] confirmed that its power implied by s. 110(1) to deal with an application not made in accordance with the steps above requires analysis of the statutory scheme under which NCAT is established, which governs the making of applications to NCAT for a decision. The Tribunal stated that:

An application for approval to make an access application is a “general application” because it is an application for a “general decision” determining a matter over which NCAT has general jurisdiction: section 29(3) of the NCAT Act. NCAT’s general jurisdiction is conferred where legislation (other than the NCAT Act and Rules) enables the Tribunal to make decisions or exercise other functions, whether on application of its own motion, of a kind specified in the legislation in respect of that matter: section 29(1) of the NCAT Act. Section 29(2) also confers jurisdiction on the Tribunal in the exercise of its general jurisdiction to make ancillary and interlocutory decisions in a proceeding, and to exercise such other functions as are conferred or imposed under the NCAT Act or enabling legislation in connection with the conduct or resolution of such proceedings …: at [57].

The Tribunal concluded at [91]-[92] that:

I therefore conclude from the analysis of both the GIPA and NCAT statutory schemes set out above that prior notice to the agency and Information Commissioner is a jurisdictional fact that must exist before the Tribunal’s jurisdiction to deal with an ‘application’ for approval to make an access application is enlivened. It is the first element of the prospective applicant’s cause of action or entitlement to make the application. For the reasons set out above I am satisfied that in enacting section 110(4) Parliament intended the presence of that element to be essential to the validity of an application for approval, and that its absence would invalidate action taken without it. There is therefore no ‘application’ before the Tribunal which is capable of invoking its jurisdiction to grant approval to make an access application.

It follows from this conclusion that the application must be summarily dismissed as the Tribunal does not have jurisdiction to deal with it. Emphasis Added.

In noting in the alternative that if it was wrong in the conclusions above, the Tribunal at [93]-[104] also considered that if it had jurisdiction to deal with the application, it ought to be refused as “misconceived” and “lacking in substance”. 

Tribunal outcome

The Tribunal at [1051], ordered that the application is dismissed.