Australia: NSW Government Bulletin - 25 March 2015

Last Updated: 13 April 2015
Article by Sylvia Fernandez, Christine Jones and Kim Nguyen

Most Read Contributor in Australia, September 2016

The recent decisions in Pittwater Council v Walker [2015] NSWCATAD 34 (Walker) and Palerang Council, Queanbeyan City Council & Goulburn Mulwaree Council v Powell [2015] NSWCATAD 44 (Powell) provide insights into the interpretation of section 110 of the Government Information (Public Access) Act 2009 (GIPA Act) and the factors that the Tribunal will consider in such applications.

Section 110(1) provides that the Tribunal may order that a person is not permitted to make an access application without first obtaining approval of the Tribunal if the Tribunal is satisfied that the person has made at least three access applications in the previous two years that lack merit, defined as where:

  • the agency decides the application by refusing to deal with the application in its entirety;
  • the agency decides the application by deciding that none of the information applied for is held by the agency; or
  • the applicant's entitlement to access lapses without that access being provided.

In Walker the respondent had made 38 applications to Council under the GIPA Act between 3 June 2013 and 30 January 2015 relating to the removal of the Queen's portrait and in relation to parking restrictions. In Powell, the respondent had made 37 applications to the applicants and other related agencies under the GIPA Act relating to the City to Soil Project. Of those, 18 applications were regarded as lacking merit under section 110.

Section 110(1) confers a broad discretion on the Tribunal as to whether a restraint order should be made once the precondition of three unmeritorious applications is satisfied. In considering whether to exercise its discretion, the Tribunal had regard to:

  • the number and types of applications over a specified period made by the individual;
  • the resources available to the agency;
  • the subject matter of the applications;
  • the responses to the applications;
  • proportionality; and
  • the conduct of the access applicant (in Powell).

The Tribunal in Walker noted that the GIPA Act provided little guidance as to any further terms of the order, including whether an order can be made for a specified period. The Tribunal ordered that Mr Walker is restrained from making any access applications to the Council without first obtaining approval from the Tribunal, until further order of the Tribunal.

In Powell, the Tribunal made an order that Mr Powell may only make an access application to the Councils having first obtained the approval of the Tribunal, in accordance with certain terms including:

  • not more than one access application is to be made to any of the Councils in any two month period;
  • an access application must not be made to any of the Councils within 14 days of having made a previous application to that Council; and
  • an access application shall not be made in respect of a document or documents the subject of any previous access application.

The order, which is to remain in force for two years, also limited the form of any communication with the Councils in relation to any application to being in writing, to the exclusion of offensive, abusive, threatening or insulting language.

These decisions highlight the broad scope available to the Tribunal in applying its discretion as well as the balancing act between the right conferred on the public to access government information and conduct that unreasonably interferes with the operations of agencies or which is manifestly unreasonable.

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In the media

Information and Privacy Commission launches e-learning to support privacy and information access legislation in NSW
Chief Executive Officer of the IPC and Information Commissioner for NSW today announced the launch of a new e-learning portal which offers a streamlined and accessible approach to training for NSW privacy and information access legislation (20 March 2015) More...

Public inquiry into former Mine Subsidence Board manager
The ICAC will hold a public inquiry commencing on Monday 30 March 2015 as part of an investigation it is conducting into allegations concerning former Mine Subsidence Board Picton office district manager, Darren Bullock (Operation Tunic) (19 March 2015) Public inquiry into former Mine Subsidence Board manager

Supporting Victims of Crime in NSW
Victims of crime whose claims were caught in the transition between the old Victims Compensation Scheme and the new Victims Support Scheme will be eligible to have their claims re-assessed, Premier Mike Baird and Attorney General Brad Hazzard announced today (15 March 2015) More...

Strong New Restrictions For Terrorism Inmates in NSW
Inmates linked to terrorism must conduct their visits in English under strengthened monitoring of prison visits. Attorney General and Minister for Justice announced strong measures to prevent inmates accused and convicted of terrorism offences from coordinating terrorism activities or inciting extremism from inside prison (08 March 2015). See Statement by Corrective Services NSW Commissioner Peter Severin on changed arrangements for Extreme High Risk Restricted AA inmates

Language restrictions on NSW prisoners deemed 'high risk' despite no known terrorist threat
A restriction on prisoners speaking languages other than English has been placed on "high-risk" inmates in NSW despite the state government acknowledging there is no known terrorist threat coming from inside the cells (08 March 2015) More...

In practice and courts

NSW IPC E-learning Portal
A new e-learning portal offers a streamlined and accessible approach to training for NSW privacy and information access legislation. View the IPC e-learning portal here: (18 March 2015)

NCAT Strategic Plan 2014 - 2018
The New South Wales Civil and Administrative Tribunal (NCAT) has released the NCAT Strategic Plan 2014-2018 - Excellence in delivering civil and administrative justice in NSW (undated), which provides four strategic directions outlining the framework for NCAT's development over the next five years". NCAT's media release (9 March 2015)

Published – articles, papers, reports

Transparency and the performance of outsourced government services
Australia and New Zealand School of Government, Office of the Information Commissioner; Professor Richard Mulgan asks whether openness can be a more powerful tool than secrecy in serving the public interest (16 March 2015) More...

Sentencing in New South Wales: A cross-jurisdictional comparison of full-time imprisonment
JUDCOM Research Monograph 39 (March 2015)
This study compares sentencing levels in NSW with those in other jurisdictions in Australia (particularly Victoria and Queensland) and overseas. The findings in this study show that sentences for a range of serious offences in NSW are among the most severe across the eastern seaboard states of Australia (20 March 2015) Sentencing in New South Wales: A cross-jurisdictional comparison of full-time imprisonment Mar 20, 2015


Neville v Secretary of the Treasury on behalf of Corrective Services NSW [2015] NSWIRComm 1004
Public sector disciplinary appeal - punishment of reduction in rank –misconduct – facts of misconduct admitted – disciplinary regime protective – specific obligation to record interactions with offenders – express policy – failure to record – failure accepted to be inadvertent not deliberate – obligations to make notes fundamental – failures to record serious whether inadvertent or not – leadership and role model obligations – misconduct established – reduction justified – appeal disallowed. More...

Gold & Copper Resources Pty Limited v The Hon Chris Hartcher, Minister for Resources & Energy, Special Minister [2015] NSWCA 57
ADMINISTRATIVE LAW – renewal of exploration licence under the Mining Act 1992 – where application for renewal was submitted on time – where new front page of application was submitted out of time ADMINISTRATIVE LAW – whether sending of new first page constitutes withdrawal or final disposal of original application under the Mining Act 1992 – whether new first page constitutes new application STATUTORY CONSTRUCTION – meaning of "finally disposed of" in ss 117 and 131 of the Mining Act 1992 – whether application may be withdrawn otherwise than pursuant to s 130 of the Mining Act 1992 – overall scheme of the Mining Act 1992 Appeal dismissed; More...

Valuer-General v Fivex Pty Ltd [2015] NSWCA 53
APPEALS - appeal confined to question of law - scope of appeal - no error of law in failing to address GST treatment of comparable sales where point not taken at trial STATUTORY CONSTRUCTION - primacy of legislative text - relevance of principles of planning law VALUATION - land value - unimproved value of fee-simple - highest and best use - s 6A(2) of Valuation of Land Act 1916 (NSW) - mandatory assumption as to existing uses and improvements - building exceeded maximum floor space ratio permitted under local environmental plan - actual use was highest and best use - whether s 6A(2) required regard to be had to maximum floor space permitted under local environmental plan or to actual floor space in building Appeal allowed. More...

Palerang Council, Queanbeyan City Council & Goulburn Mulwaree Council v Powell [2015] NSWCATAD 44
Government Information Public Access Act 2009 – Access to information – Restraint provisions – whether to make restraining order – jurisdiction of Tribunal – relevant considerations 1. This order is made under section 110 of the Government Information (Public Access) Act 2009 ("the GIPA Act") and shall remain in force until 2 years from the date of this decision. More...

Pittwater Council v Walker [2015] NSWCATAD 34
The Respondent is restrained from making any access application to Pittwater Council without first obtaining approval of the Tribunal pursuant to section 110 (1) of the Government Information Public Access Act 2009. Government Information Public Access Act 2009 – Access to information – Restraint provisions – whether to make restraining order – beneficial jurisdiction – supervisory function of Tribunal – general jurisdiction of Tribunal – Standing of Information Commissioner in proceedings. Civil and Administrative Tribunal Act 2013; Freedom of Information Act 1982 (Cth); Government Information (Public Access) Act 2009; Government Information (Information Commissioner) Act 2009; Local Government Act 1993 More...



Electronic Transactions (ECM Courts) Amendment (Indictments) Order
The object of this Order is to authorise the use of JusticeLink to create, file, issue, use and serve indictments in criminal proceedings in the District Court and Supreme Court. This Order is made under clause 3 of Schedule 1 to the Electronic Transactions Act 2000 – 06/03/2015

Crimes (Domestic and Personal Violence) Amendment (Apprehended Personal Violence Orders)
Crimes (Domestic and Personal Violence) Amendment (Apprehended Personal Violence Orders) Regulation 2015: The object of this Regulation is to prescribe the form of an application notice for an apprehended personal violence order. This Regulation is made under the Crimes (Domestic and Personal Violence) Act 2007, including sections 50 (2) and 101 (the general regulation-making power) - 06/03/2015

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