Information Access Case Note: Page v Southern Cross University [2016] NSWCATAD 199

View full decision here Discounting processing charges and refusal to deal further with an access application when an advance deposit has not been paid Page v Southern Cross University [2016] NSWCATAD 199

What you need to know

This case considered two issues: firstly whether the discounts provided by sections 65 and 66 of the Government Information (Public Access) Act 2009 (GIPA Act) could be applied together to reduce the processing charge; and secondly whether section 70(3) of the GIPA Act prevents the Tribunal from reviewing a decision to refuse to deal further with an access application for the failure to pay an advance deposit when the Information Commissioner has already reviewed the decision to impose an advance deposit under section 68 of the GIPA Act.

The Tribunal reconfirmed that the discounts in processing charges are not cumulative, as was decided in National Tertiary Education Union v Southern Cross University [2015] NSWCATAD 151 (NTEU decision). The Tribunal found it should only depart from the NTEU decision if satisfied the decision was plainly wrong, and in the current matter the Applicant could not demonstrate to the Tribunal that this was the case.

The Tribunal also found that section 70(3) should not be interpreted as meaning a previous review by the Information Commissioner about the decision to impose an advance deposit would prevent the Tribunal from reviewing that decision (that is the decision to impose an advance deposit), when asked to review a decision to refuse to deal further with an access application for the failure to pay an advance deposit.

Legislative background

Sections 65 and 66 of the GIPA Act provide for reductions in processing charges based on financial hardship and special benefit to the public generally.

Section 68 of the GIPA Act provides that an agency may require the payment of an advance deposit of a processing charge.

Section 70(3) provides that a review under Part 5 of a decision to refuse to deal further with an application for a failure to pay an advance deposit is taken to be a review of both the decision to refuse to deal further and the decision to impose an advance deposit (unless the decision to impose the advance deposit has already been reviewed under that Part).

Factual background

The Applicant applied for numerous items of information from the Respondent, and included with the application explanatory notes with the request. The Respondent assessed the request and gave the Applicant notice that it would be seeking processing charges and requested an advance deposit of $2,460 under section 68 of the GIPA Act.

The Applicant requested a reduction in charges based on sections 65 and 66 of the GIPA Act. The Respondent agreed to the reduction under section 65 but not section 66 and advised that the revised advanced deposit required was $1,080.

The Applicant sought an external review by the Information Commissioner of the decision to require an advance deposit. The Information Commissioner completed the review in October 2014 and made no recommendations.

The Respondent then notified the Applicant of its decision to refuse to deal further with the access application under section 70 of the GIPA Act, as the Applicant had failed to pay the advance deposit.

The Applicant applied for an internal review of this decision and the Respondent refused part of the internal review (the question of the advance deposit and the refusal to reduce the processing charge) and relied upon  section 82(4) of the GIPA Act which provides that there is to be no internal review of a decision that is or has been the subject of review by the Information Commissioner except where the internal review was conducted by the agency on the recommendation of the Information Commissioner.  The Applicant again sought an external review by the Information Commissioner. The Information Commissioner completed the review in August 2015 and made no recommendations. The Applicant then applied to the Tribunal for external review of the decision to refuse to reduce the processing charge under section 66 of the GIPA Act and the refusal to deal further with the access application for the failure to pay an advance deposit under section 70 of the GIPA Act.

The Tribunal considered whether:

• The Tribunal erred in  in determining the NTEU case for reasons including failing to apply a beneficial interpretation of the GIPA Act, and
•  Whether the facts and circumstances of the present case could be distinguished from the NTEU decision.

The Tribunal found that there was no reason to depart from the NTEU decision.

The second issue identified a question of jurisdiction in relation to section 70(3) of the GIPA Act. Both the Applicant and the Respondent submitted that the GIPA Act is beneficial legislation, and further made submissions about how the Tribunal should apply this beneficial legislation. In particular the Applicant submitted that section 70(3) has a beneficial purpose in that it expressly extends the scope of the review. Further the Applicant contended that section 70(3) ought to be construed beneficially and that any limits on the scope of review rights should be construed narrowly.

The Tribunal found that even where the legislation is beneficial there must be some ambiguity in the legislation before considering a beneficial interpretation. However the Tribunal was persuaded by the Applicant’s submissions and found that despite review by the Information Commissioner, section 70(3) should not be interpreted to prevent the Tribunal’s review of a decision by an agency to refuse to deal further with an access application for the failure to pay an advance deposit.

The Tribunal found that the Respondent’s decision to require an advance deposit and the decision to refuse to deal further with the access application because the Applicant has failed to pay the advance deposit in the time required for payment should be affirmed.