Howard v Department of Communities and Justice Housing

[2023] NSWCATAD 187

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Howard v Department of Communities and Justice - Housing [2023] NSWCATAD 187

Hearing dates:

7 June 2023

Date of orders:

16 June 2023

Decision date:

16 June 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

P French, Senior Member

Decision:

The Agency’s decision that the applicant’s ‘application’ dated 24 March 2023 is not a valid access application is affirmed.

Catchwords:

ADMINISTRATIVE LAW – Government Information (Public Access) Act 2009 – administrative review of a reviewable decision – decision that an ‘application’ is not a valid application because it is not accompanied by an application fee – distinction between application fee and processing charges

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW) – ss 9, 55

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Cases Cited:

Shi v Migration Agents Regulatory Authority (2008) 235 CLR 286

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Morgan Howard (Applicant)
Department of Communities and Justice – Housing (Respondent)

Representation:

Solicitors:
Applicant (Self-represented)
Z Dunford (Respondent)

File Number(s):

2023/00120084

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. This is an application by Morgan Howard (the applicant) under section 55 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and s 100 of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) for an administrative review of a decision of the agency made on 20 March 2023 that an application she made to the agency on 13 March 2023 was not a valid access application. This application was made to the Tribunal on 23 March 2023 (the application).

2. For the reasons set out following, I have decided to affirm the agency’s decision as the correct and preferrable decision. It is mandatory that an access application is accompanied by an application fee. Unless there is a prior waiver of the application fee before an access application is made, an ‘application’ cannot constitute an access application without payment of the application fee. Such an application therefore cannot attract the operation of the GIPA Act. The GIPA Act legislative scheme draws a fundamental distinction between ‘an application fee’ and ‘processing charges’. The potential for the application fee to later be applied to processing charges in limited circumstances does not convert it to a payment in respect of processing charges at the time it is required to be paid.

Procedural history

3. The application was first listed before the Tribunal, differently constituted, for a case conference on 24 April 2023. The issues in dispute could not be resolved at the case conference. Consequently, the Tribunal made directions for the filing and exchange of submissions in relation to that application.

Material considered

4. I have considered the following material:

Applicant

1. Document dated 23 March 2023 which is treated as the applicant’s application for administrative review,

2. Submissions dated 8 May 2023,

3. Submissions dated 24 April 2023,

Respondent

1. Submissions dated 4 May 2023 attaching s 58 documents.

The hearing

5. The hearing was conducted in person. Ms Morgan attended the hearing in person and gave evidence and made submissions in her own cause. Ms Zoe Dunford, in-house solicitor, appeared and made submissions on behalf of the agency. The parties had the opportunity to present their respective cases and to make final submissions to the Tribunal.

Material facts

6. By email dated 13 March 2023 addressed to [email protected] the applicant purported to make what is referred to in the email subject line and in the body of the email a “GIPA Application”. I will refer to this request hereafter as the “GIPA Application” with the intention that this does not have the same meaning as an “access application” for reasons that will emerge following.

7. Beside the heading “information requested” the applicant stated: “[a]ll information of which the GIPA Applicant is subject – including but not confined to, a copy of HOUSING 9FACS/DJC0 file - [file no.] – that has been generated since 1 January 2023 until current.

8. Under the heading “[p]lease note”, the applicant stated the following:

1. The GIPA Applicant is the subject of the information requested

1.1 Thus the GIPA Applicant is exempt from paying application fee; and is entitled to first 20 hours of processing free of charge

1.2 In consideration of the short time frame of the GIPA Application (1 Jan 2023 to current), unless employees of FACS/DJC have been very naughty, 20 hours should be ample time to produce documents/information subject of the GIPA Application.

…

9. The applicant then goes on to express various views as to how her access application is to be processed by the agency, which she repeatedly referred to in her written and oral submissions as a “tutorial”.

10. As is apparent from what is set out above the applicant did not remit any application fee to the agency in respect of her GIPA Application. Nor did she request any waiver of the application fee before she submitted it. She considered herself ‘exempt’ from paying an application fee.

11. By email to the applicant dated 20 March 2023 the delegate of the agency notified the applicant that she had determined that her application was an “[i]nvalid GIPA access application” and could not proceed until such time that the agency received an application fee in the amount of $30.00 which was a requirement in accordance with s 41(1)(c) of the GIPA Act. The delegate advised the applicant that the application fee may be reduced to $15.00 if she was in receipt of a statutory benefit and she provided the agency with a copy of her pension or health care card with the payment. The delegate also advised the applicant how she could make payment of the application fee.

12. By email to the agency dated 20 March 2023 the applicant requested an internal review of the agency’s decision that her GIPA Application was an invalid access application. The applicant did not remit any application fee to the agency in respect of her internal review application.

13. By email dated 22 March 2023 the delegate of the agency notified the applicant that the agency required payment of the internal review application fee in accordance with s 85(1) of the GIPA Act, and that no further action would be taken in relation to this application until the agency received proof of such payment. The delegate advised the applicant how she could make payment of the internal review application fee.

14. On 23 March 2023, the applicant applied to NCAT for administrative review of the agency’s decision that her GIPA Application was an invalid access application.

15. Prior to the first case conference the agency made an offer to the applicant that it would waive the $30.00 application fee if she would agree to with withdraw the proceedings. The applicant declined that offer. I note that this offer was not made on a without prejudice basis or in mediation. To the extent that it is relevant this matter is therefore before the Tribunal.

Contentions of the parties

Agency

16. The agency contends that its’ decision that the applicant’s GIPA Application is an invalid access application because it was not accompanied by the required application fee is the correct and preferable decision. It submits that the Tribunal should affirm that decision.

Applicant

17. The applicant’s submissions are lengthy and densely argued. However, they ultimately distil to the following contentions:

1. the government information that is the subject of her GIPA Application is personal information within the meaning of s 67 of the GIPA Act,

2. consequently, the agency is prohibited by that section from imposing any processing charge for the first 20 hours of processing of this application,

3. the government information (being personal information) that is the subject of her GIPA Application relates to the period 1 January 2023 to 13 March 2023 (being the date her GIPA application was made). This is a short (“minute”) timeframe, and that consequently, the processing time that would be required for the agency to identify the government information that is responsive to her access application could not reasonably exceed 20 hours,

4. s 64(3) of the GIPA Act provides that the $30.00 application fee counts as a payment towards any processing charge payable by the applicant,

5. s 64 appears in Division 5 of Part 4 after Division 1 where s 41 is found, so ‘cancels’ or ‘takes precedence’ over s 41,

6. consequently, as she will not incur any processing fee in relation to her GIPA Application, she is not obliged to pay an application fee,

7. in these circumstances she is not obliged to request, or to accept, any reduction or waiver of the application fee,

8. the agency’s refusal to process her GIPA Application constitutes malfeasance by named staff of the agency who have refused to comply with the agency’s obligations under the GIPA Act with respect to the applicant despite the mandatory terms of its s 3 object, and the provisions of s 5 and 9(1) in particular,

9. the agency’s refusal to process her GIPA Application is the latest in a decades long campaign of victimisation by staff of the agency and its predecessors which has deprived her of social housing, rendered her homeless, and which has also deprived her of eligibility for other necessary support services.

Jurisdiction

18. Part 3 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) sets out NCAT’s jurisdiction. It includes such jurisdiction and functions as may be conferred or imposed on it by or under the NCAT Act or any other legislation: 28(1). It includes NCAT’s administrative review jurisdiction: s 28(2)(b). Section 30 of the NCAT Act sets out NCAT’s administrative review jurisdiction. It relevantly provides that the ADR Act provides for the circumstances in which NCAT has administrative review jurisdiction over a decision of an administrator: s 30(1).

19. Part 2 of ADR Act also deals with the administrative review jurisdiction of the Tribunal. In brief, and relevantly, s 7 in that Part provides that an administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction. Section 9 in that Part provides that the administrative review jurisdiction is conferred on NCAT if enabling legislation provides that applications may be made to NCAT for administrative review under the ADR Act of any such decision (or class of decisions) made by an administrator.

20. Part 3 of the ADR Act sets out NCAT’s role in conducting an administrative review. Division 3 in that Parts sets out the Tribunal’s powers in respect of an administrative review. In this respect s 63 provides:

1. Determination of administrative review by Tribunal

2. In determining an application for an administrative review under this Act of an administrative reviewable decision, the Tribunal is to decide that the correct and preferrable decision is having regard to the material then before it, including the following:

(a)   any relevant factual material,

(b)   any applicable written or unwritten law

1. For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

2. In determining an application for the administrative review of an administrative review decision, the Tribunal may decide:

(a)   to affirm the administratively reviewable decision, or

(b)   to vary the administratively reviewable decision,

(c)   to set aside the administratively reviewable decision and make a decision in substitution for the administrative reviewable decision it set aside, or

(d)   to set aside the administrative reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the tribunal.

21. With respect to s 63(1) a “correct” decision is one that is rightly made, while preferable is apt to refer to a decision involving discretionary considerations: Shi v Migration Agents Regulatory Authority (2008) 235 CLR 286 at [140] per Kiefel J.

22. Part 5 of the GIPA Act deals with the review of administrative decisions made under that Act. Division 1 of that Part specifies which decisions are reviewable under that Part. In this respect s 80 provides, relevantly:

1. Which decisions are reviewable decisions

The following decisions of an agency in respect of an access application are “reviewable decisions” for the purposes of this Part –

(a)   a decision that an application is not a valid access application.

…

23. Division 4 of the GIPA Act deals with administrative (or external) review of decisions made under that Act by NCAT. Section 100 in that Part relevantly provides:

1. Administrative review of decision by NCAT

2. A person who is aggrieved by a reviewable decision of an agency may apply to NCAT for an administrative review under the ADR Act of the decision …

Applicable law

24. The object of the GIPA Act is found in s 3 of that Act. In this respect, s 3(1) relevantly provides:

1. In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by -

…

(b)   giving members of the public an enforceable right to access government information, and

…

25. That object is reinforced by the statutory command found in s 3(2) of the GIPA Act, which provides:

1. It is the intention of Parliament –

(a)   that this Act be interpreted and applied so as to further the object of this Act, and

(b)   that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

26. Part 2 of the GIPA Act sets out the general principles that apply in respect of open government information. Division 1 of that Part deals with the ways of accessing government information. In this respect, it is notable that 5 of that Division provides that there is a presumption in favour of the disclosure of government information unless the is an on overriding public interest against disclosure.

27. Section 9 in that Division deals with “access applications” for government information. It provides:

1. Access applications

2. A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.

3. An agency is not subject to the direction or control of any Minister in the exercise of the agency’s functions in dealing with a particular access application.

4. The function of making a reviewable decision in connection with an access application made to the agency may only be exercised by or with the authority (given either generally or in a particular case) of the principal officer of the agency.

   28. The term “access application” is defined in s 4(1) of the GIPA Act:

“access application” means an application for access to government information under Part 4 that is a valid access application under that Part.

29. Part 4 of the GIPA Act contains the machinery provisions of the Act with respect to access applications. Division 1 of that Part deals with the making of access applications. In this respect, s 41 in that Division sets out how an access application is to be made:

1. How to make an access application

2. An application or other request for government information is not a valid access application unless it complies with the following requirements (the “formal requirements”) for access applications –

(a)   it must be in writing sent by post to or lodged at an office of the agency concerned or made in the manner approved by the agency under subsection (2),

(b)   it must clearly indicate that it is an access application made under this Act,

(c)   it must be accompanied by a fee of $30.

(d)   it must state the name of the applicant and a postal or email address as the address for correspondence in connection with the application,

(e)   it must include such information as is reasonably necessary to enable the government information applied for to be identified.

Note: see section 51A concerning the effect of a waiver, reduction or refund of the fee for an access application. See also section 52(3) concerning assistance to be afforded by an agency to an access applicant

…

30. Division 3 of Part 4 of the GIPA Act sets out the process by which an agency is required to deal with access applications. In this respect s 51 requires the agency to make an initial decision as to the validity of an application:

1. Initial decision as to validity of application

2. When an agency receives an application for access to government information that it appears is intended to be an access application, the agency is to decide whether the application is a valid access application and is to notify its decision to the applicant by either –

(a)   acknowledging receipt of the application as a valid access application, or

(b)   notifying the applicant that the application is not a valid access application.

1. An agency’s decision as to the validity of an application must be made as soon as practicable after the agency receives the application and in any event within 5 working days after the application is received.

…

1. An agency’s decision that an access application is not a valid access application is presumed to be correct, subject to any review of the decision under Part 5.

   31. Section 51A in Division 3 sets out the effect of the waiver, reduction, or refund of an application on the validity of an access application. It provides, relevantly:

51A   Effect of waiver, reduction or refund of application fee

1. An agency is not to treat an application as being an invalid access application only because of the non-payment of the required application fee if -

(a)   the payment of the fee was waived by the agency before the application was made, or

(b)   the amount of the fee payable was reduced by the agency before the application was made and the reduced fee accompanied the application,

1. If any agency waives payment of the required application fee, or reduces the amount of the fee that is payable, after the application made (and the application would have been valid had the required application fee had been paid) –

(a)   in the case of a waived fee – the application becomes a valid access application and is deemed to have been made when the fee was waived, or

(b)   in the case of a reduced fee – the application becomes a valid access application when the reduced fee is paid and is deemed to have been made when the payment is made.

1. The refund of an application fee does not affect the validity of an access application that was duly made.

   32. Section 52 in Division 3 deals with the assistance an agency is required to give a prospective access applicant in respect of an application that is not a valid access application. It provides:

2. Agency assistance with invalid applications

3. The notification of an agency’s decision that an application is not a valid application must –

(a)    include a statement of the reason why the application is not a valid access application (including a reference wot the relevant provisions of this Act, and

(b)    if a reason is non-payment of the required application fee, invite the applicant to pay the fee, and

(c)   if the reason is failure to provide required information, invite the applicant to provide the information, and

(d) notify the applicant of the right of review under Part 5 that applies in relation to a decision that an application is not a valid access application.

1. The application becomes a valid access application if the applicant pays the required fee or provides the required information (as appropriate, and is then deemed to have been made with the fee or information was received by the agency.

1. An agency must provide advice and assistance, so far as it would be reasonable to expect the agency to do so, to assist an applicant to provide such information as may be necessary to enable the applicant to make a valis access application.

2. An applicant is entitled to a refund of any application fee that accompanied an invalid access application (unless the application subsequently becomes valid)

   33. Division 5 of Part 4 of the GIPA Act deals with the processing charges an agency is entitled to impose in relation to an access application. It relevantly provides in ss 64 and 67:

3. Processing charge for dealing with access application

4. An agency may impose a charge (a “processing charge”) for dealing with an access application at the rate of $30 per hour for each hour of processing time for the application.

5. The “processing time” for an application is the total amount of time that is necessary to be spent by any officer of the agency in –

(a)   dealing efficiently with the application (including consideration of the application, searching for records, consultation, decision-making and any other function exercised in connection with deciding the application), or

(b)   providing access in response to the application (based on the lowest reasonable estimate of the time that will need to be spent in providing that access).

1. The application fee of $30 paid by an applicant counts as a payment towards any processing charge payable by the applicant.

2. Access to government information granted in response to an access application may be made conditional on payment of any processing charge imposed for dealing with the application.

…

…

1. Waiver of processing charge for personal information application

If an access application is made for personal information about the applicant (the applicant being an individual), the agency cannot impose any processing charge for the first 20 hours of processing time for the application.

34. Part 7 of the GIPA Act deals with Miscellaneous matters, including the agency’s discretion to waive, reduce or refund any fee or charge that is payable under that Act. In this respect, s 127 provides:

1. Waiver, reduction or refund of fees and charges

An agency is entitled to waive, reduce or refund any fee or charge payable or paid under this Act in any case that the agency thinks appropriate, subject to the regulations.

Consideration

35. The starting point for analysis is found in s 9(1) of the Act, which provides that a person who makes an access application for government information has a legally enforceable right to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information (I note that qualification is not presently relevant). The ‘legally enforceable right’ that the applicant ultimately relies upon in these proceedings therefore depends upon the making of an “access application” within the meaning of the GIPA Act.

36. The meaning of “access application” is found in s 4(1) of the GIPA Act. It means ‘an application for access to government information under Part 4 that is a valid access application under that Part” (emphasis added). To labour the point, s 4(1) makes it clear that it is only a valid access application that can give rise to a legally enforceable right to government information.

37. Section 41 of the GIPA Act sets out the formal requirements for access applications. It expressly provides in the chapeau of s 41(1) that an ‘application or other request for government information is not a valid application unless it complies …’ with these formal requirements. In this respect I note that the ordinary meaning of the word “requirement” is ‘a thing that is compulsory’ and ‘a necessary condition’. The formal requirements are therefore mandatory. One of the formal requirements is that the application ‘must be accompanied by a fee of $30’: s 41(1)(c) (emphasis added). The term ‘must’ is also mandatory in nature.

38. It is thus plain that an ‘application’ will not be an “access application” that attracts the operation of the GIPA Act unless the formal requirements contained in s 41(1) are satisfied. One of those formal requirements is the payment of an application fee.

39. There are five exceptions to this, four of which are specified in s 51A of the GIPA Act.

40. In this respect, the agency may waive or reduce the application fee before the access applicant makes the access application: s 51A(1)(a) and (b). In her submissions on behalf of the agency, Ms Dunford indicated that this typically occurred by operation of pre-existing written policy in respect of a particular class of persons who were granted prospective waiver of the application fee based on their status (the example given was prisoners). The application fee is waived in accordance with the policy upon receipt of the access application from a person of that status. In relation to the reduction of the application fee, the agency has a pre-existing policy to discount the application fee by 50% for those persons who hold a pension or health care card on presentation of a copy of that card with their application and payment.

41. The agency may also waive or reduce the application fee after an (invalid) application is received: s 51A(2)(a) and (b). If the application is otherwise valid, the invalid application then becomes valid as at the date of the application fee waiver or on the date the reduced application fee is paid.

42. The fifth exception is found in s 52(2). An prospective access application that is invalid at the time it is made due to the failure of the applicant to pay the application fee will become valid if the applicant later pays the application fee.

43. None of the exceptions apply in this case. It is not contended by the applicant that she is a member of a class of persons to whom the agency has, by policy instrument, pre-determined that an application fee waiver applies. Nor did she apply for a fee waiver prior to lodging her GIPA Application, and she has declined to accept a fee waiver in settlement of this dispute. Nor has she requested or been granted any reduction in the application fee, and no reduced fee has been paid in fact. Nor has she paid the application fee since lodging her GIPA Application.

44. For the foregoing reasons, the applicant’s GIPA application is plainly not a valid access application within the meaning of s 41(1) of the GIPA Act. The delegate of the agency was correct in coming to that conclusion.

45. It is clear from the material facts set out above that the delegate complied with the agency’s obligations under ss 51 and 52 of the GIPA Act on 20 March 2023 by notifying the applicant within 5 working days of receipt of her GIPA Application that it was not a valid access application because of non-payment of the required application fee, by inviting her to pay the application fee (at the reduced rate if she could provide evidence of any pension or health care card with payment), and by providing her with information about the means by which payment of the application fee cold be remitted to the agency. The delegate also notified the applicant of her rights of internal and external review of the agency’s decision in accordance with s 52.

46. The applicant’s contention that she is not required to pay an application fee because she will not incur any processing charge under Part 4, Division 5 is plainly misconceived. Divisions 1 and 5 of the GIPA Act operate independently of each other within the legislative scheme. Division 5 has nothing to say about the ‘initiation’ of an access application, it is concerned only with charges that may arise in connection with the ‘processing’ of an access application after its initiation. An application that is not a valid access application is not ‘processed’ in accordance with Division 3 of Part 4 and can therefore incur no processing time or related charge under Division 5.

47. The fact that an applicant for personal information obtains under s 64(3) the benefit of their application fee towards any processing charge that is in fact incurred in accordance with s 64(1) does not operate to obviate the need for payment of an application fee or convert the application fee into a payment related to the processing rather than the initiation of an access request. If that had been Parliament’s intention the legislation would draw no distinction between the making of an access application and the processing of such an application. But it clearly does. The legislative scheme plainly contemplates that an access applicant will incur an application fee (unless waived) and in certain circumstances may also incur processing charges in relation to their access request in accordance with s 64.

Orders

48. For the foregoing reasons:

1. The Agency’s decision that the applicant’s ‘application’ dated 24 March 2023 is not a valid access application is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 18 July 2023