In the recent decision of Walker v Pittwater Council  NSWCATAD 78, the NSW Civil and Administrative Tribunal considered the scope of a Tribunal member's discretion to allow a person who is the subject of a restraint order to make an application to access government information.
In the previous decision of Pittwater Council v Walker  NSWCATAD 34, Mr Walker had been restrained from making any access applications to the Council without first obtaining approval from the Tribunal (see our previous article here).
Mr Walker sought the approval of the Tribunal to make two applications to Pittwater Council for access to information under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) for documents relating to:
- a complaint that a personal attack had been made on him at a Pittwater Council meeting, where another Pittwater Council employee had allegedly failed to restrain the person making the attack. Pittwater Council responded to Mr Walker's complaint stating that no further action was required, as the complaint was "trivial, frivolous, vexatious and not in good faith". Mr Walker requested documents relating to his complaint to Pittwater Council and the decision by Pittwater Council to take no action; and
- a Pittwater Council decision that prohibited Mr Walker from attending Pittwater Council workplaces and meeting venues. Mr Walker sought to access all documents regarding the restrictions on Mr Walker and the eight alleged 'inappropriate behaviours' which purportedly justified the restrictions.
The Tribunal concluded that Mr Walker did have an enforceable right to access government information and approval was granted for Mr Walker to lodge the above two applications under the GIPA Act with Pittwater Council.
The Tribunal considered that its discretion when considering a restrained person's application for access to information must be exercised reasonably and in accordance with the subject matter, scope and purpose of the statute (Water Conservation and Irrigation Commission (NSW) v Browning  HCA 21). Furthermore, in accordance with section 3(2)(b) of the GIPA Act, all discretions conferred by the Act must be "exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information".
The Tribunal held that whether or not the applications are vexatious are irrelevant. This is because the words "frivolous, vexatious, misconceived...", which are included in section 109 of the GIPA Act, allowing the Tribunal to refuse to deal with a review of a decision of an agency, if it is satisfied that the application for review is "frivolous, vexatious, misconceived or lacking in substance" is not included in the GIPA Act provision for the Tribunal's power to make an order for a person subject to a restraint to access information. The relevant section, section 110(6) of the GIPA Act omits the words in section 109 of the GIPA Act and states:
"NCAT may order that a person who is the subject of a restraint order is not permitted to apply to NCAT for approval to make an access application if NCAT is satisfied that the person has repeatedly made applications for approval that are lacking in substance."
Pittwater Council contended that Mr Walker's 78 applications since 2006 affect the extremely limited resources of its Council. Whilst the Tribunal stated that unreasonable interference with an agency's operations can be a restriction in relation to how the information is produced (as stated under s 72 of the GIPA Act), it is not a restriction that the GIPA Act places on the making of applications.
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Walker v Pittwater Council  NSWCATAD 78
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