Australia: NSW Government Bulletin - 22 June 2016

Last Updated: 1 July 2016
Article by Lyn Nicholson

The NSW Information Commissioner recently published two new resources that clarify certain rights and responsibilities of parties, and the role of the Information Commissioner under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). The new Fact Sheets consider offence provisions and restraint orders under the GIPA Act. The core objective of the GIPA Act is to promote responsible and representative democratic government through open access to government information. In line with this objective, the GIPA Act places obligations on NSW Government agencies to publish and release information, and provides for a process for dealing with requests for access to information. The new Fact Sheets strengthen the promotion of GIPA Act objectives.

The Fact Sheet 'Offences under the GIPA Act' serves as a reminder of the offences under the GIPA Act for both officers of agencies and for members of the public. Under the GIPA Act, it is an offence:

  • For an officer of an agency to act unlawfully in making a reviewable decision: s 116.
  • For a person to direct an officer of an agency to act unlawfully in making a reviewable decision: s 117.
  • For a person to improperly influence an officer of an agency on a decision on access applications: s 118.
  • For a person to unlawfully access government information through misleading or deceiving an officer of an agency: s 119.
  • For a person to conceal or destroy government information: s 120.

These offences carry a maximum penalty of $11,000. The Government Information (Information Commissioner) Act 2009 (NSW) (GIIC Act) governs the process for making and investigating complaints under the GIPA Act. The Information Commissioner may decide to decline to deal with the complaint, provide information to parties, facilitate discussions with the parties, or investigate the complaint. The Information Commissioner is not, however, permitted to bring proceedings for an offence, and must refer the matter to the Office of the Director of Public Prosecutions or the Attorney General if it believes an offence has been committed: s 128(2).

The Fact Sheet 'Restraint Orders under the GIPA Act' clarifies that the right of a person to request access to government information is not absolute and should not be abused. Under s 110 of the GIPA Act, the Tribunal has the ability to restrain unmeritorious applications for information. Some recent cases have demonstrated that in some situations public interest considerations favour the restraint of unmeritorious and persistent applications. Such applications that require an unreasonable and substantial diversion of resources of an agency will impinge on the ability of the agency to promote open access to the broader public.

Under s 110 of the GIPA Act, the Tribunal has the discretion to make a restraint order where a person has made at least three access applications to one or more agencies in a two-year period that lack merit. An application is deemed to be 'lacking in merit' when the agency has refused an application in its entirety, or decided that none of the information applied for is held by the agency, or the applicant's entitlement to access information has lapsed.

The effect of a restraint order is that the person will not be permitted to make an access application without first obtaining approval from the Tribunal, for a length of time determined by the Tribunal. The restraint order may apply to all access applications or may be limited by reference to particular kinds of information or certain agencies.

In the media

Prisons become a new $3.8bn building boom

The big cash splash on jails, to be spent over four years, was revealed ahead of the forthcoming NSW Budget, with Treasurer Gladys Berejiklian and Corrections Minister David Elliot saying the spend will fund "a long-term infrastructure plan to cater for the rising prisoner population and better manage and rehabilitate inmates." (16 June 2016) More...

President delivers opening address at COAT National Conference.

The President delivered the opening address at the COAT National Conference held on 9 June 2016 (14 June 2016) More...

NSW Budget - Record investment to tackle domestic violence

(11 June 2016) NSW Budget - Record investment to tackle domestic violence

John Robson SC will be sworn in as a judge of the NSW Land and Environment Court

Attorney-General Gabrielle Upton has announced the appointment of John Robson as a judge of the Land and Environment Court. John Robson SC will be sworn in as a judge of the NSW Land and Environment Court next month (10 June 2016) More...

Australians want a federal corruption watchdog, even though major parties don't

A large majority of Australians want a federal corruption watchdog similar to the NSW ICAC, though the Coalition and Labor are opposed to it (06 June 2016) More...

In practice and courts

NSW Information Commissioner publishes two new GIPA Act resources

The NSW Information Commissioner has published two new fact sheets to assist applicants and decision-makers under the Government Information (Public Access) Act 2009 (GIPA Act) (15 June 2016) More...

NSW: Practicing Certificate Exemptions - Transitional Arrangements
The Department of Justice (DoJ) has advised that all corporate lawyers and some government lawyers are no longer exempt from the requirement to be admitted or to hold a practising certificate in order to engage in legal practice due to the commencement of the Legal Profession Uniform Law (NSW) ( further information) on 1 July 2015.

NSW NCAT Legal Bulletin Issue 3 of 2016?

The NCAT Legal Bulletin provides a summary of relevant and interesting case law of significance to the work of the NSW Civil and Administrative Tribunal (15 June 2016) More...

NSW ICAC: Operation Ricco public inquiry concludes

The ICAC's Operation Ricco public inquiry into allegations concerning the former CFO of Botany Bay City Council and others has concluded. The Commission will prepare and furnish its report to Parliament in due course (08 June 2016) More...

NSW ICAC: Prosecution briefs with the DPP and outcomes

Briefs with the DPP and outcomes of ICAC-related prosecutions. Last updated 7 June 2016 More...

NSW ICAC: Operation Greer public inquiry concludes

The ICAC's Operation Greer public inquiry into allegations concerning the former CEO of the Gandangara Local Aboriginal Land Council has concluded. The Commission will prepare and furnish its report to Parliament in due course (16 June 2016) More...

Published – articles, papers, reports

AUSPUBLAW: Does the Constitution protect offensive political speech

This post examines the constitutionality of the offence with which Nelson was charged. It looks more generally at the challenging (and persistent) legal questions raised by Nelson's case: can we criminalise offensive political speech? Or is such speech protected as an essential feature of the system of government established by the Constitution? (15 June 2016) More...

NSW recorded crime statistics: quarterly update March 2016

NSW Bureau of Crime Statistics and Research: Government of New South Wales

The NSW recorded crime statistics quarterly update, March 2016 (08 June 2016) More...

Does a prison sentence affect future domestic violence reoffending?

NSW Bureau of Crime Statistics and Research; Judy Trevena, Suzanne Poynton

Finds that prison is no more effective in deterring domestic violence offenders than a suspended sentence (14 June 2016) More...

The role of think tanks: a reply to the critics

Centre for Independent Studies; Jeremy Sammut

Argues that what think tanks do and why they do it is entirely transparent (13 June 2016) More...

Digital disruption: what do governments need to do?

Productivity Commission

This review sets a broader framing for the formal inquiries into Data Availability and Use, and Intellectual Property Arrangements (15 June 2016) More...

Defining Characteristics and the Forgotten Court

Stephen McDonald, (2016) 38(2) Sydney Law Review 207-229

This article outlines the High Court of Australia's development of limitations on state legislative power to affect state courts and, in particular, the Court's acceptance of the concept of 'defining characteristics' of a 'court' as a touchstone for constitutional validity More...

Cases

Luxford v Department of Education and Communities [2016] NSWCATAD 118

Access to government information - overriding public interest against disclosure - personal information - information provided to an agency in confidence - information provided to the agency during an investigation - prejudice supply of confidential information - prejudice effective exercise of agency's functions More...

Eyes v Wyong Shire Council [2016] NSWCATAD 120

Government Information – public Interest considerations in favour of disclosure – public interest considerations against disclosure - prejudice to effective exercise of agency functions - information provided in confidence - prejudice to the conduct, effectiveness or integrity of an investigation - diminish the competitive commercial value of the information - prejudice to legitimate business and commercial interests More...

ALZ v SafeWork NSW (No 2) [2016] NSWCATAD 121

Privacy – health privacy principles – information protection principles – personal information – health information – collection – lawful purpose – unlawful means – storage – relevance – use – access - disclosure of health information More...

Vye v Secretary, Department of Finance, Services and Innovation [2016] NSWCATAD 117

PRACTICE AND PROCEDURE – Leave sought for complaint declined under the Anti-Discrimination Act 1977 to proceed – Whether fair and just for leave to be granted – Where applicant has not had an opportunity to question manager and there is no evidence as to the manager's reasons for the treatment of the applicant – Circumstances in which Tribunal may draw inferences – No grounds for drawing inference that any less favourable treatment of the applicant was on the ground of the applicant's age. More...

Waterhouse v Independent Commission Against Corruption (No 3) [2016] NSWCA 134

BIAS – apprehended bias – application for disqualification of judge – application based on association with decision-maker who was a former member of the Court. More...

D W Tolson Management Pty Ltd v Chief Commissioner of State Revenue [2016] NSWCATAD 113

ADMINISTRATIVE LAW - Civil and Administrative Tribunal (NSW) - application made out of time - land tax - application for extension of time - exercise of discretion. More...

P v Western NSW Local Health District [2016] NSWCATAD 109

Government information public access – review of decision – overriding presumption of a public interest consideration against disclosure due to client legal privilege – consideration of whether pubic interest requires non-disclosure of personal information – consideration of whether public interest requires the non-disclosure of information because it is reasonably likely to prejudice any person's legitimate business, commercial, professional or financial interests – anonymity of applicant – consideration of effect of prior decisions restricting disclosure of applicants identity – further order restricting disclosure of applicants name made. More...

Legislation

Commonwealth

High Court Amendment (2016 Measures No. 1) Rules 2016

These Rules amend the High Court Rules 2004 to incorporate new special leave procedures and brings the procedures for removal applications into line with the special leave procedures. It also provides a new form for Outlines of Oral Argument for matters before the Full Court - Form 23—Application for leave or special leave to appeal The fee tables will commence on 1 July 2016(16 June 2016). More...

NSW

Proclamations commencing Acts

Regulatory Reform and Other Legislative Repeals Act 2015 No 48 (2016-300) — published LW 10 June 2016

Regulations and other miscellaneous instruments

Election Funding, Expenditure and Disclosures (Adjustable Amounts) Amendment Notice 2016 (2016-323) — published LW 17 June 2016

Casino Control Amendment (RSA Courses and Certification) Regulation 2016 (2016-301) — published LW 10 June 2016

Gaming Machines Amendment (RCG Courses and Certification) Regulation 2016 (2016-304) — published LW 10 June 2016

Government Information (Public Access) Amendment (Subsidiary Agencies) Regulation 2016 (2016-305) — published LW 10 June 2016

Liquor Amendment (RSA Courses and Certification) Regulation 2016 (2016-306) — published LW 10 June 2016

Bills assented to

Crimes (High Risk Offenders) Amendment Act 2016 No 24 — Assented to 07 June 2016

Norfolk Island Administration Act 2016 No 25 — Assented to 07 June 2016

Courts Legislation Amendment (Disrespectful Behaviour) Act 2016 No 26 — Assented to 07 June 2016 - the object of the Act is to make it a summary offence for a person to engage in behaviour that is disrespectful (according to practice and convention) in the Supreme Court, Land and Environment Court, District Court or Local Court in coronial proceedings, including to prescribe a maximum penalty of 14 days imprisonment or 10 penalty units or both for contravention of the proposed offence.

Statute Law (Miscellaneous Provisions) Act 2016 No 27 — Assented to 07 June 2016

For the full text of Bills, and details on the passage of Bills, see Bill

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
Lyn Nicholson
 
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