Zonnevylle v Minister for Education

[2019] NSWCATAD 28

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Zonnevylle v Minister for Education [2019] NSWCATAD 28

Hearing dates:

On the papers

Date of orders:

13 February 2019

Decision date:

13 February 2019

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Ludlow, Senior Member

Decision:

(1)   That part of the application for review which seeks review of:

 

“Breach of GIPA Act and failure to promote GIPA Act
   …Alleged offences under the Act
   Sect. 112 Improper conduct complaint
The Minister is causing the applicant a deliberate detriment = unlawful discrimination against the applicant”

 

   is dismissed.

(2) The proceedings are listed for directions at 2pm on 27 February 2019 concerning the filing of material by the parties relevant to a review of the respondent’s decision under s 80(e) of the Government Information (Public Access) Act 2009.

Catchwords:

ADMINISTRATIVE LAW – government information –
offences – jurisdiction – reviewable decision - reasonableness of searches

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Government Information (Public Access) Act 2009 (NSW)
Interpretation Act 1987 (NSW)

Cases Cited:

Camilleri v Commissioner of Police [2012] NSWADT 5
Smalley v Motor Accident Authority of New South Wales [2013] NSWCA 318
Smith v Pittwater Council [2016] NSWCATAD 67
Stanley v Roads and Maritime Services (NSW) [2014] NSWCATAD 123

Texts Cited:

Nil

Category:

Procedural and other rulings

Parties:

Peter Zonnevylle (Applicant)
Minister for Education (Respondent)

Representation:

Solicitors:
Crown Solicitor (Respondent)

File Number(s):

2018/00333885

Publication restriction:

Nil

REASONS FOR DECISION

The application for review

1. These proceedings concern an application for review by this Tribunal of a decision made under the Government Information (Public Access) Act 2009 (“the GIPA Act”). The application attaches an application under the GIPA Act dated 16 August 2018 addressed to the respondent, which seeks information as follows:

“Ref document ‘Dept. of Education & Training Briefing for the Minister’ DGS12/613

1.   a.   Copy of document and all related documents/memos/directives associated with this document including evidence provided by Hopkins, CPO DEC or other officers for this proposal.

b.   Details on all recipients of this document (ie. Other Ministers, Agency executives, oversight agencies, etc who have been provided a copy of this document.

2.   Documents/memos/correspondence between:

a. The Minister &

b.   any DEC executives, including Bruniges/Riordan/Baily/Hopkins/Patrick/Southern

referencing or concerning Zonnevylle.

3.   Correspondence received by the Minister from DET/DEC or from any other agencies/Ministers/concerning Zonnevylle.

4.   Documents between the Minister and the Premier & Cabinet concerning Zonnevyllle

5.   Complaints the Minister received concerning:

a.   Workplace Supplies Tender 1006c

b.   Tender: DETPR-35-11

c.   Tender: DECPR-02-12

d.   Premiers Memorandum 2006/11

e.   DET/DEC procurement activities

6.    Documents identifying any Education Minister’s staff who dealt with any matters related to Zonnevylle when Picolli was Education Minister and the current Minister.

Period for the above items: Between 2010 and June 2018

7.   Correspondence/documents received by the Minister’s office from Zonnevylle

8.   Documents related to Australia Post item No 4961 8893 1012

Above documents to show which Ministerial staff took possession of items 7 & 8.

9.    Documents related to Australia Post Items No. 4961 8893 2019 & 4961 8893 3016

Above documents to show which Ministerial staff took possession of items 9.

10.    Documents identifying the name and position of the Education Ministry’s (delegated) Information Access Manager / officer since Jan. 2010 & who currently holds that position.

Period for items 7 to 10 between April 13, 2018 & August 16, 2018.

11.   All codes of conduct applicable to all Ministerial Staff (Jan. 2017 to July 2018)

12.    Documents received by the Ministry from the Applicant per Clipper Couriers Con. Note. G20014366 on 17-07-2018 & the Ministerial staff officer who took possession of these documents.

13.    Documents detailing Statutes/Acts/Legislation for refusal to apply to the above applications.”

2. Below this list is a statement that certain public officers have been complicit in maladministration, disadvantaging state schools, breaching NSW procurement policies and guidelines, covering up maladministration and serious misconduct by “DEC officers”, and complicity in wasting public funds. They are alleged to have breached their conduct obligations, acted in bad faith and with bias, abused their powers and breached “conflict of interest/bad faith/misfeasance/integrity guidelines.” The document continues:

“Ministerial officers (possibly including the Minister himself) are alleged to have breached codes of conduct and possible unlawful/criminal offences as a result of their misconduct.

There is a clear public interest which would better inform the public:

(a)   Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

(b)   Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

(c)   Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

(d)   Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.”

3. The grounds for the application to the Tribunal are stated to be:

“Breach of GIPA Act and failure to promote GIPA Act

Breach of applicant’s right to access personal information

(Information relating to the applicant)

Alleged offences under the Act

Sect. 112 Improper conduct complaint

The Minister is causing the applicant a deliberate detriment = unlawful discrimination against the applicant.”

4. The application also states that there was:

“…no response from the respondent dating back from April 2018. This application has been resubmitted six times.”

5. The applicant attached what appears to be correspondence with this Tribunal regarding an appeal and a fee waiver application and annexing a number of statutory declarations pre-filled by the applicant which he apparently wishes the persons named on the declarations to complete.

The history of the application

6. It appears that no decision was made on the applicant’s original application to the respondent under the GIPA Act until 5 November 2018, after these proceedings had commenced.

7. As the application was not determined within the prescribed time, the application is deemed to have been refused and the respondent refunded the applicant’s $30 application fee (s 63(1) GIPA Act). Notwithstanding this, the respondent made a decision on the application and determined that the information sought under items 1-6 and 8-10 were not held by the respondent. The decision maker stated:

“Under section 53 of the GIPA Act the department must undertake reasonable searches for any of the information applied for, using the most efficient means reasonably available.

The office keeps records electronically, in physical files (hard copy) and in individuals’ email accounts. All relevant systems were searched by the areas identified as likely to hold the requested information.

I consider that reasonable searches have been made in response to your application in keeping with section 53 of the GIPA Act. Based on the information available to me, I am satisfied that only some of the search items are held by this office.”

8. With respect to item 7, the decision-maker stated:

“I have attached all correspondence held by this office from Zonnevylle, including the facsimiles listed below. I note that this search captured correspondence dated 9 April 2019 from yourself to this office which attached a number of documents, including one which makes reference to DGS 12/613. I cannot ascertain whether or not this is the full document requested under search item 1.

Search item 11 is publicly available at:

note that we have received a number of resubmitted applications via facsimile, namely:

[the letter lists 39 dates between 24 August 2018 and 24 October 2018 on which the applications were received]

The above applications were substantially the same as your application received on 18 July 2018, with two additional search items.

Pursuant to section 41(1) of the GIPA Act, I have determined that the above resubmitted applications are not valid applications as there were not accompanied by a fee of $30.

Not withstanding the applications being invalid, I determined the following in relation to the two additional search items:

12.   I have attached a copy of your application that I received on 18 July 2018.

13.    This information can be found at requested I have attached the certified copy of your passport.”

9. Also before the Tribunal was the response from a delegate of the Information Commissioner to the applicant dated 23 November 2018 to the applicant’s complaint about the Minister for Education’s conduct in the exercise of his functions under the GIPA Act. The response concluded:

“…while the Agency has sincerely apologised for the delay responding adequately to your application, I am satisfied that the Agency’s steps taken to implement systems improvements are adequate and reasonable.”

The Tribunal proceedings

10. On 11 December 2018 the Tribunal made directions listing the matter for a preliminary hearing on 29 January 2019 at 10 am to determine preliminary issues raised by the respondent, namely whether the Tribunal had the jurisdiction to deal with the application, and whether the application was vexatious and should be dismissed.

11. The respondent was directed to file and serve a notice of its application for summary dismissal, together with any evidence and submissions in support, by 7 January 2019.

12. The applicant was granted leave to file and serve evidence and submissions in reply by 25 January 2019. The applicant’s submissions were not received by the Tribunal until the morning of the hearing.

13. On 29 January 2019 the applicant did not attend the hearing. He had previously applied to participate in the hearing by telephone. This application had been refused by another Senior Member. The applicant was sent a written notification of this decision on 25 January 2019 stating;

“1.   The request by the applicant to participate in the hearing listed at 10.am on 29 January 2019 is refused.

The applicant does not live in a regional area, and no reason has been provided as to why he is unable to appear in person.

2.   The request by the applicant to participate in the hearing listed at 10 am on 29 January 2019 by telephone is refused.

The applicant does not live in a regional area, and no reason has been provided as to why he is unable to appear in person.”

14. The applicant then telephoned the Registry on 29 January and claimed that the Registry notice was misleading. On my direction he was put through to the hearing room.

15. The applicant sought an adjournment of the hearing for an unspecified period. After hearing from the parties, I refused the adjournment request. My reasons for doing so were:

1. The applicant had been notified in advance of the hearing date and was aware the hearing would proceed on that day;

2. The respondent was in appearance and both parties had filed submissions on the preliminary point to be determined;

3. While the Registry’s communication to him was potentially confusing, he had chosen to telephone the Registry at the time of the hearing;

4. If I now granted leave for him to appear by telephone, which was his original request, and allowed a short adjournment before the hearing proceeded that day, there would be no apparent prejudice to the applicant.

16. The applicant then applied for me to recuse myself from hearing the application on the grounds that I was displaying bias against him. The grounds of the application appeared to be that I had refused the adjournment request.

17. The general test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question he or she is required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [11]. In that case the High Court also held that the decision maker has an obligation to hear and determine the matter unless reasonable apprehension of bias can be established (at [19]).

18. My considered refusal of the applicant’s request could not, in my view, lead to a reasonable apprehension that I was unable to bring an impartial mind to bear on the issues before the Tribunal.

19. In the case of actual bias allegedly demonstrated at hearing, this can be found to exist where there is evidence that the decision-maker has prejudged the case against the applicant, or has acted with such partisanship or hostility as to establish that he or she has already determined what the findings will be. It is not sufficient to show that the decision-maker has expressed views adverse to the party's position at an early stage of the proceedings unless there is also proof that those views were incapable of being changed in the course of the proceedings (Drummond J in Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19; (2000) 96 FCR 125 at 133-134).

20. In my view the applicant did not establish the existence of actual or apprehended bias. Accordingly I refused the application to recuse myself from the preliminary hearing.

21. After hearing from the parties on how the matter should proceed, and offering the options of a hearing on the papers or a hearing at which the applicant could participate by telephone after a short adjournment, I determined that I would make a decision on the preliminary issues on the papers.

The respondent’s submissions

22. The respondent’s submissions, in summary were:

1. The only reviewable decision before the Tribunal was that government information was not held by the agency (GIPA Act s 80(e)).

2. The only basis for challenging this decision was to challenge the adequacy of the searches undertaken by the respondent.

3. The matters raised by the applicant in his application for review, regarding an alleged breach of the GIPA Act, were not properly the subject of an administrative review application and the Tribunal did not have jurisdiction to deal with them (reference was made to s 112 and s128 GIPA Act).

4. While the applicant referred to “a breach of the applicant’s right to access personal information” this was not relevant as the respondent had released all information it held in response to the application.

23. Its written submissions also contained an argument that the proceedings should be dismissed on the basis that they were vexatious under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (“the CAT Act”). At the hearing, the Minister’s legal representative stated that the respondent no longer pressed this ground.

The applicant’s submissions

24. The applicant provided lengthy submissions, most of which dealt with substantive rather than preliminary issues. In reviewing those submissions I have identified the following submissions as relevant to the preliminary issues. In summary, they were:

1. There is significant and substantial evidence of an offence under s 120 of the GIPA Act.

2. The Tribunal has jurisdiction to deal with review of the decisions under s 80; offences under s 111, 112, 116, 117, 118, 119 and 120; and systemic breaches of the GIPA Act namely ss 3(1)(b) and (c) and 3(2)(a) and (b), 5, 9(1), 12(1) and ((2), 14(2), 15, 16, 41, 43, 51, 52, 53, 55, 57, 60, 61, 63, 72, 105, 116, 117, 118, 120 and 126.

3. The Tribunal can review the respondent’s conduct which falls under the following provisions of s 80 of the GIPA Act:

“(a)   a decision that an application is not a valid access application,

…

(c)   a decision to refuse to deal with an access application (including such a decision that is deemed to have been made),

(d)   a decision to provide access or to refuse to provide access to information in response to an access application,

(e)   a decision that government information is not held by the agency,

…

(g)   a decision to refuse to confirm or deny that information is held by the agency,

(h)   a decision to defer the provision of access to information in response to an access application,

(i)   a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant).”

4. By virtue of s 64 of the Interpretation Act 1987, the offences under ss 111, 112, 116, 117, 118, 119 and 120 relate to reviewable decisions and the Tribunal has authority to deal with them.

5. The applicant disputed the reasonableness of the respondent’s information searches.

25. The issue before the Tribunal is whether it has jurisdiction to determine the applicant’s application. The Tribunal’s review jurisdiction is conferred by s 100 of the GIPA Act and s 7 and 9 of the Administrative Decisions Review Act 1997 (“the ADR Act”) (see also s 30(1) CAT Act).

26. Section 7 of the ADR Act provides:

“7 Meaning of “administratively reviewable decision”

(1)   An administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction.

(2)   For the avoidance of doubt (and without limiting subsection (1) or section 6):

(a)   the conduct of an administrator (or a refusal by an administrator to engage in conduct) is an administratively reviewable decision if enabling legislation identifies that conduct or refusal as conduct or refusal over which the Tribunal has administrative review jurisdiction, and

(b)   in its application to any such conduct or refusal by an administrator, any reference in this Act (however expressed) to an administrator making an administratively reviewable decision includes a reference to an administrator engaging or refusing to engage in the conduct.

27. Section 9 of the ADR Act provides:

“9 When administrative review jurisdiction is conferred

(1)   The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator:

(a)   in the exercise of functions conferred or imposed by or under the legislation, or

(b)   in the exercise of any other functions of the administrator identified by the legislation.

(2)   If enabling legislation makes provision for applications to be made to the Tribunal in respect of an administratively reviewable decision subject to certain conditions, the Tribunal has jurisdiction under the enabling legislation only if those conditions are satisfied.

(3)   A provision of enabling legislation that provides for a decision of an administrator to be administratively reviewable by the Tribunal under this Act extends to the following:

(a)   a decision made by a person to whom the function of making the decision has been delegated,

(b)   if the provision specifies the administrator by reference to the holding of a particular office or appointment—a decision by any person for the time being acting in, or performing any of the duties of, the office or appointment,

(c)   a decision made by any other person authorised to exercise the function of making the decision.

(4)   If an administrator makes an administratively reviewable decision by reason of holding or performing the duties of an office or appointment and then ceases to hold or perform the duties of the office or appointment, this Act has effect as if the decision had been made by:

(a)   the person for the time being holding or performing the duties of that office or appointment, or

(b)   if there is no person for the time being holding or performing the duties of that office or appointment or the office no longer exists—such person as the President (or another person authorised by the President) specifies.

(5)   Nothing in this section permits administrative review jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act.”

28. Section 100 of the GIPA Act provides:

“100 Administrative review of decision by NCAT

(1) 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 (referred to in this Division as an NCAT administrative review).

(2)   An aggrieved person who is not the access applicant is not entitled to apply to NCAT for an NCAT administrative review of a decision if the person is still entitled to apply for an internal review of the decision under Division 2.”

29. A “reviewable decision” is any decision listed in s 80 of the GIPA Act.

The Tribunal’s jurisdiction with regard to improper conduct or offences under the GIPA Act

30. Section 112 of the GIPA Act provides:

“112 Report on improper conduct

If NCAT is of the opinion on the completion of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may on its own initiative bring the matter to the attention of:

(a)   the Minister who appears to NCAT to have responsibility for the agency, or

(b)   if the Minister who appears to NCAT to have responsibility for the agency was a party to the proceedings, the Information Commissioner.

31. As noted above, conduct is an administratively reviewable decision only if the enabling legislation (in this case the GIPA Act) identifies that conduct or refusal as conduct or refusal over which the Tribunal has administrative review jurisdiction. The GIPA Act does not identify “improper conduct” as a reviewable decision.

32. Moreover, the exercise of any power under s112 is expressly dependent upon an administrative review having been completed, which is not the case in these proceedings. The applicant therefore cannot rely on this to establish jurisdiction; jurisdiction must exist separately of s 112 in order to justify the holding of an administrative review.

33. Sections 116 to 120 create a number of offences including knowingly making a reviewable decision contrary to the Act, or directing someone to do so; improperly influencing the making of a decision on an access application; knowingly misleading or deceiving an officer of an agency for the purpose of obtaining access to government information; and concealing or destroying government information.

34. The applicant also submitted that s 64 of the Interpretation Act has the effect that the offence provisions referred to relate to reviewable decisions.

35. Section 64 provides:

“64 Every section of an Act a substantive enactment

Every section of an Act has effect as a substantive enactment without introductory words.”

36. In Smalley v Motor Accident Authority of New South Wales [2013] NSWCA 318 the Court of Appeal held that the purpose of s 64 was to avoid repeating the enacting formula of words before each clause or section (at [43]). The section does not have the effect which the applicant argues for.

37. Section 128 of the GIPA Act provides that offences under the GIPA Act are dealt with summarily before the Local Court with the authority of the Director of Public Prosecutions or the Attorney General.

38. Accordingly the Tribunal does not have jurisdiction to deal with the alleged conduct or offences identified by the applicant.

Jurisdiction to review decisions under s 80 of the GIPA Act

39. The respondent’s submission is that the only reviewable decision before the Tribunal was that government information was not held by the agency (GIPA Act s 80(e)).

40. The grounds for the application were stated by the applicant to be:

“Breach of GIPA Act and failure to promote GIPA Act

Breach of applicant’s right to access personal information

(Information relating to the applicant)

Alleged offences under the Act

Sect. 112 Improper conduct complaint

The Minister is causing the applicant a deliberate detriment = unlawful discrimination against the applicant.”

41. None of the above relate to s 80(e). In his submissions, however, the applicant states he seeks review under various provisions of s 80. I will deal with each of these individually.

A decision that an application is not a valid access application (s 80(a))

42. The respondent stated in its decision that the multiple applications it received, apart from the one received on 18 July 2018, were not valid applications as they were not accompanied by a fee of $30.

43. The applicant claims that he lodged 6 applications and 5 were accompanied by a cheque for the fee. He has not claimed, however, that each application was a separate application. His application to this Tribunal expressly states that it concerns the application which he lodged on 16 August 2018 and that the application stated:

“This application has been resubmitted six times.”

According to the applicant, therefore, the six applications were identical. It follows, therefore, that in making a decision in respect of his application of 18 July, the respondent was in effect dealing with his application of 16 August. In my view there is no reviewable decision that the application which is the subject of review was not valid.

A decision to refuse to deal with an access application (s 80(c))

44. There is no evidence before me that indicates that the respondent refused to deal with an access application. The letter quoted above is to the contrary. Accordingly I am not satisfied that such a decision exists which could be reviewed in these proceedings.

A decision to provide access or to refuse to provide access to information in response to an access application (s 80(d))

45. It is evident from the letter, and the applicant does not dispute, that the respondent did provide access to certain information in response to the applicant’s application. There is no statement in the letter refusing access to any information. Review may be sought by a person who is aggrieved by a reviewable decision (s 100(1)). The applicant has not stated that he is aggrieved by the provision of access to himself or that this forms part of his application for review. Accordingly I am not satisfied that there is a reviewable decision under this sub-section which gives the Tribunal jurisdiction.

A decision that government information is not held by the agency (s 80(e))

46. As noted above, the respondent stated that it searched for, but determined that it did not hold the information sought under items 1-6 and 8-10 of the application.

47. There was no mention of s 80(e) or the lack of adequate searches in the applicant’s application to the Tribunal. In his submissions received on 29 January 2019, the applicant said that he disputed the sufficiency of the respondent’s searches.

48. The Respondent’s obligation to search for information in response to an access application is set out in s 53 of the GIPA Act:

“53 Searches for information held by agency

(1)   The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received.

(2)   An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency’s searches must be conducted using the most efficient means reasonably available to the agency.

(3)   The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically.

(4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency’s established record management procedures.

(5)   An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency’s resources.”

49. As held in Smith v Pittwater Council [2016] NSWCATAD 67, Camilleri v Commissioner of Police [2012] NSWADT 5 and other relevant decisions, the first question to be asked by the Tribunal is whether there are reasonable grounds to believe that the requested information exists and is information of the agency. The applicant bears the onus of demonstrating that there are reasonable grounds for believing that further information falling within the scope of the access request exists that has not been supplied: Stanley v Roads and Maritime Services (NSW) [2014] NSWCATAD 123 at [57].

50. The Tribunal has jurisdiction to review this decision.

A decision to refuse to confirm or deny that information is held by the agency (s 80(g))

51. There is no evidence before me that indicates that the respondent refused to confirm or deny that any information was held by it. Accordingly I am not satisfied that any such decision was made and this sub-section does not give the Tribunal jurisdiction in this case.

A decision to defer the provision of access to information in response to an access application (s 80(h))

52. There is no evidence before me that indicates that the respondent decided to defer access to any information in response to the applicant’s application. Accordingly I am not satisfied that any such decision was made and this sub-section does not give the Tribunal jurisdiction in this case.

A decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant) (s 80(i))

53. There is no evidence before me that indicates that the respondent decided to or decided not to provide access in a particular way. Accordingly I am not satisfied that any such decision was made and this sub-section does not give the Tribunal jurisdiction in this case.

Systemic breaches of the GIPA Act

54. Under this heading the applicant refers to ss 3(1)(b) and (c) and 3(2)(a) and (b), 5, 9(1), 12(1) and (2), 14(2), 15, 16, 41, 43, 51, 52, 53, 55, 57, 60, 61, 63, 72, 105, 116, 117, 118, 120 and 126 which he alleges have been breached.

55. It is possible that by mentioning systemic breaches the applicant is referring to s 111 of the GIPA Act which provides:

“111   Referral of systemic issues to Information Commissioner

NCAT may refer any matter to the Information Commissioner that NCAT considers is indicative of a systemic issue in relation to the determination of access applications by a particular agency or by agencies generally.”

56. Section 111 does not, either expressly or impliedly, give the Tribunal jurisdiction to review a decision.

57. The offence provisions in ss 116, 117, 118 and 120 have been dealt with above.

58. Allegations of a breach of the GIPA Act do not provide a source of jurisdiction for the Tribunal to undertake a review. It has jurisdiction to review certain reviewable decisions, as explained above. This aspect of the applicant’s submissions does not identify any source of jurisdiction on which he can rely.

Conclusion

59. The only ground relied on by the applicant which the Tribunal has jurisdiction to review is the ground under s 80(e) of the GIPA Act. The applicant did not expressly refer to s 80(e) in his application but the application contained a statement that his rights of access to information concerning himself had been breached. In his submissions concerning jurisdiction he stated that he disputed the reasonableness of the searches conducted by the respondent. Accordingly, I have determined to confine the scope of the application to this reviewable ground and dismiss the remainder of the application.

Orders

1. That part of the application for review which seeks review of:

“Breach of GIPA Act and failure to promote GIPA Act

…Alleged offences under the Act

Sect. 112 Improper conduct complaint

The Minister is causing the applicant a deliberate detriment = unlawful discrimination against the applicant”

is dismissed.

2. The proceedings are listed for directions at 2pm on 27 February 2019 concerning the filing of material by the parties relevant to a review of the respondent’s decision under s 80(e) of the Government Information (Public Access) Act 2009.

**********

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: 13 February 2019