Australia: NSW Government Bulletin - 11 May 2016

Last Updated: 13 May 2016
Article by Kim Nguyen and Jarrad McCarthy

In the recent decision of Walker v Pittwater Council [2016] 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 [2015] 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:

  1. 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
  2. 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 [1947] 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.

Please join us for our 'Your Subpoena Checklist' seminar taking place next Wednesday, 17 May 2016 at 12.45pm. Please register here.

To start a conversation about Government Bulletin or issues of interest to NSW government lawyers, join the LinkedIn group NSW Government Lawyers by clicking on this  link.  Membership is open to lawyers employed in the public sector. 

In the media

More protection for domestic violence victims in NSW

Domestic violence offences will now also include any and all NSW or Commonwealth criminal offence where the defendant intends to coerce, control or cause the victim to fear for their safety, like using a mobile carriage service to menace, harass or cause offence  More...

New laws protect community from high risk offenders in NSW

The amendments to the Crimes (High Risk Offenders) Act 2006 introduced to Parliament today address limitations in this law which could have prevented some dangerous prisoners from being considered for further detention or supervision (04 May 2016)  More...

Response to the Productivity Commission's Report into access to justice arrangements

The Attorney-General releases the Government t Australian Government's response to the Productivity Commission's Report into Access to Justice Arrangements Response to the Productivity Commission's report into access to justice arrangements. The report considers a number of significant areas in the civil justice system at both the Commonwealth, and the state and territory level (29 April 2016)  More...

Election 2006: Senate probe into women's low super balances to focus on equal pay

Smart Cities will grow the innovation economy

The Prime Minister Hon Malcolm Turnbull has released the Commonwealth's Smart Cities Plan, to deliver jobs closer to homes, more affordable housing, better transport connections and healthy environments (29 April 2016) More... 

Planning Institute of Australia 29 April 2016 - Planners Welcome Smart Cities Plan, Concerns Over Lack of Population Strategy

Whistleblowing research will improve corporate culture says Governance Institute

The world's largest research project into whistleblowing launched today by Griffith University at an event hosted by Governance Institute of Australia will support a dramatic uplift in corporate culture at a critical time when the government, regulators and community are demanding higher standards of ethical conduct from Australian corporations (28 April 2016)  More...

Privacy Impact Assessment finalised

The Privacy Impact Assessment on the draft amendments to Chapter 4 regarding collecting information from other than the customer has been finalised (28 April 2016)  More...

Improving privacy in Australia's general practices a joint effort

Acting Australian Information Commissioner, Timothy Pilgrim, has today welcomed a series of actions by Australia's peak medical groups to improve privacy practices at Australia's GP clinics (28 April 2016) More...

In practice and courts

Budget 2016 D Justice Statements

Office of the Australian Information Commissioner

The Government has decided not to proceed with the new arrangements for privacy and Freedom of Information (FOI) regulation, including the proposed changes to the Office of the Australian Information Commissioner (OAIC). Accordingly, the OAIC will receive ongoing funding of $37 million over four years to continue its privacy and FOI functions

Government responds to access to justice report

The Australian Government has released a response to recommendations of the Productivity Commission Access to Justice Report implemented to date. Despite the report recommending increased resourcing for legal assistance services, the Government response does not announce new funding, which is of concern to stakeholder groups (29 April 2016)

Legal Practitioners' Scale of Costs

The High Court, Federal Court, Family Court and Federal Circuit Court have established a Joint Costs Advisory Committee (JCAC) to inquire into, and to make recommendations on, any variations in the quantum of costs (including expenses and fees for witnesses) allowable to legal practitioners (26 April 2016) More...

Elder Abuse Inquiry

The ALRC has received Terms of Reference for an Inquiry into Elder Abuse. Initial research and consultations are underway and will continue into May. The ALRC has established an Advisory Committee for the Inquiry and its first meeting will be in May. The first consultation document of the Inquiry will be an Issues Paper to be released on 15 June 2016  More...

2016 COAT National Conference 2016

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ICAC: ICAC public inquiry into corruption allegations concerning Gandangara LALC board and CEO

The ICAC)Operation Greer public inquiry into allegations concerning the Gandangara Local Aboriginal Land Council (GLALC) will start on 9 May 2016 into allegations that GLALC board members partially exercised their official functions by agreeing to employment  arrangements with GLALC chief executive officer Mark Johnson, derived benefits from the GLALC or its associated entities (06 May 2016)  More...

ICAC: Public inquiry into corruption allegations concerning former Casino Boolangle LALC CEO

Public inquiry into corruption allegations concerning former Casino Boolangle LALC CEO

The ICAC will hold a public inquiry commencing on 4 May 2016 as part of an investigation it is conducting into allegations concerning former Casino Boolangle Local Aboriginal Land Council (CBLALC)  more...

Tuesday, 03 May 2016 More...

ICAC: Operation Ricco public inquiry proposed to recommence 3 June

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Published – articles, papers, reports

Australian Government's response: Productivity Commission's Report into Access to Justice Arrangements

The report considers a number of significant areas in the civil justice system at both the Commonwealth, and the state and territory level. The Australian Government's response addresses recommendations implemented to date. The Government's response is available below (29 April 2016)  More...

Sentencing Outcomes for Firearms Offences

Parliament of NSW: BF 02/2016 

This paper sets out the recent history of firearms offences, including the origins of the Firearms Act 1996 (NSW) in the aftermath of the Port Arthur massacre. It then outlines the distinction between non-strictly indictable and strictly indictable firearms offences, and considers the significance of that distinction on the sentencing of firearms offences (05 May 2016) More...

Cases

Health Care Complaints Commission v Woods [2016] NSWCATOD 52

ADMINISTRATIVE LAW — Civil and Administrative Tribunal (NSW) — health practitioner — use of "excessive force" in dealing with a violent patient — whether practitioner was acting in self-defence — whether practitioner guilty of unsatisfactory professional conduct — whether practitioner guilty of professional misconduct — appropriate disciplinary orders where finding made that practitioner is guilty of professional misconduct More...

CEL v Commissioner of Victims Rights [2016] NSWCATAD 83

Administrative Review – Statutory interpretation - Jurisdiction to determine application for administrative review – Whether Regulation operates to extinguish a right to request a review that accrued prior to the commencement of the Regulation  More...

Zakaria (as Tutor for SA) v New South Wales Crime Commission [2016] NSWSC 506

ADMINISTRATIVE LAW – whether procedural fairness applies to the giving of evidence – whether the Plaintiff had the right to be heard before issue of the Summons to attend hearing to give evidence – procedural fairness applies to entitle the Plaintiff to be heard on any objection to the giving of evidence or to a question asked – procedural fairness does not apply to the issue of the Summons – Summons dismissed.   More...

McKean v Department of Justice [2016] NSWCATAP 93

GOVERNMENT INFORMATION (PUBLIC ACCESS) – Agency refusal to disclose to student material relating to examination process – Affirmed by Tribunal – Appeal – Weighing by Tribunal of public interest considerations for and against disclosure – Nature of discretionary task -Whether Tribunal erred in law – Held not –Leave to extend appeal to other grounds refused – Appeal dismissed.  More...

Walker v Pittwater Council [2016] NSWCATAD 78

Approval is granted to Mr Walker to lodge an application with the Pittwater Council under the Government Information (Public Access) Act 2009 in the terms set out in these reasons.

ADMINISTRATIVE LAW – access to government information – restraint order in place – leave required for applicant to apply for access to information under Government Information (Public Access) Act 2009 – two applications lodged for approval – relevant considerations when exercising discretion to approve or not approve applications.  More...

Legislation

NSW

Regulations and other miscellaneous instruments

Assisted Reproductive Technology Amendment (Disclosure of Information) Regulation 2016 (2016-214) — published LW 6 May 2016

Children and Young Persons (Care and Protection) Amendment (Private Health Professionals) Regulation 2016 (2016-216) — published LW 6 May 2016

Bills introduced Government

Crimes (Domestic and Personal Violence) Amendment (Review) Bill 2016

Crimes (High Risk Offenders) Amendment Bill 2016

Norfolk Island Administration Bill 2016

Terrorism (Police Powers) Amendment (Investigative Detention) Bill 2016

Bills passed by both Houses of Parliament

Crimes (Serious Crime Prevention Orders) Bill 2016

Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016

Fines Amendment Bill 2016

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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Authors
Kim Nguyen
Jarrad McCarthy
 
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