Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Department of Communities and Justice v Zonnevylle [2020] NSWCATAP 126 Hearing dates: On the Papers Date of orders: 30 June 2020 Decision date: 30 June 2020 Jurisdiction: Appeal Panel Before: Hennessy ADCJ, Deputy President S Westgarth, Deputy President A Suthers, Principal Member Decision: (1) A hearing of each of Mr Zonnevylle's applications for interlocutory orders and applications for miscellaneous orders is dispensed with. (2) The appeal is upheld. (3) Orders 1 and 2 made on 22 October 2019 are set aside. (4) In substitution for those orders, the following orders are made: (5) The decision of the Department of Communities and Justice that Mr Zonnevylle's application for access to government information received on 5 September 2018, is invalid, is affirmed. (6) Each of Mr Zonnevylle's applications for interlocutory orders and applications for miscellaneous orders is dismissed. Catchwords: STATUTORY INTERPRETATION – access to government information – where applicant applied for government information but did not include such information as was reasonably necessary to enable the government information applied for to be identified – whether application wholly invalid - meaning of phrase "the government information applied for" in s 41(1)(e) of Government Information (Public Access) Act 2009 Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 Cases Cited: City of Port Adelaide Enfield v Minister for Transport and Urban Planning [1999] SASC 73; (1999) 73 SASR 22 Federal Cmr of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 384; 153 ALR 490 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405 Texts Cited: Pearce and Geddes, Statutory Interpretation in Australia, (9th ed, 2019, LexisNexis Butterworths) Category: Principal judgment Parties: Department of Communities and Justice (Appellant) Peter Zonnevylle (Respondent) Representation: Solicitors: Crown Solicitor (Appellant) Respondent (Self Represented) File Number(s): AP 19/51762 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Citation: [2019] NSWCATAD 215 Date of Decision: 22 October 2019 Before: D Robertson, Senior Member File Number(s): 2019/00356297 REASONS FOR DECISION Overview 1. To be a valid application for government information under the Government Information (Public Access) Act 2009 (GIPA Act), the application must "include such information as is reasonably necessary to enable the government information applied for to be identified": GIPA Act, s 41(1)(e). We will call this requirement "the requirement to identify the government information." 2. Mr Zonnevylle applied to the Department of Communities and Justice for access to numerous items of government information under the GIPA Act. The Department could not identify three items of government information from the description Mr Zonnevylle provided in the application. Communications between the Department and Mr Zonnevylle failed to resolve the problem. The Department notified Mr Zonnevylle that the application was not a valid access application. He applied to the Tribunal for a review of that decision. The Tribunal found that the items of government information that could not be identified were a severable part of the application and that only that part of the application was invalid. 3. The Department has appealed to the Appeal Panel. The issue in this appeal is whether "the government information" in s 41(1)(e) means all the requested government information or a severable part of that information. The only ground of appeal is that the Tribunal below erred, in finding that: [A]n application which, in a severable part, does not include sufficient information to enable the government information applied for to be identified is not thereby wholly invalid: Zonnevylle v Department of Justice [2019] NSWCATAD 215 at [89]. 1. The Department of Communities and Justice is entitled to appeal on this ground because it is a question of law: NCAT Act, s 80(2)(b). 2. Mr Zonnevylle opposed the appeal and applied for it to be dismissed summarily as vexatious or brought for a collateral purpose. We address that application and various other applications for miscellaneous orders as well as some preliminary issues at the end of these reasons. 3. After giving the parties the opportunity to make submissions about the proposed order, we have dispensed with a hearing in relation to Mr Zonnevylle's general applications for miscellaneous (and interlocutory) orders because we are satisfied that the issues for determination can be adequately determined in the absence of the parties: NCAT Act, s 50(2). The Appeal Panel previously made an order dispensing with a hearing in the appeal proceedings. 4. In the interests of resolving the real issues in dispute between the parties quickly, we decided that our decision in relation to those applications, and our reasons for them, should be provided in this decision determining the substantive appeal: NCAT Act, s 36. 5. The Information Commissioner was not involved in the proceedings below but exercised her right to appear and be heard on appeal: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), Sch 3, cl 9(4)(a). The Information Commissioner's submissions comprehensively analysed relevant provisions of the GIPA Act and provided insights into how the legislation operates in practice. 6. For the reasons we give below, we have upheld the appeal. The words "the government information" in s 41(1)(e) of the GIPA Act mean all the requested government information, not a severable part of that information. Process for applying for access to government information 1. Under the GIPA Act, a person who makes an "access application" has a "legally enforceable right to be provided with access to the information in accordance with Part 4", unless there is an overriding public interest against disclosure of the information: s 9. An "access application means an application for access to government information under Part 4 that is a valid access application under that Part": s 4. Part 4 is headed "Access Applications" and has six Divisions. Below we summarise the main provisions in Part 4 that are relevant to the issue on appeal. 2. Division 1 (ss 41-43) is headed "Making an access application". Section 41(1) lists the five formal requirements for a valid access application, the last of which is "the requirement to identify the government information": 41 How to make an access application (1) 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. 1. Section 42 allows an applicant to include additional information in an application that the applicant thinks may be relevant. Section 43(1) provides that an access application cannot be made for "excluded information", and that "[a]n application for government information is not a valid access application to the extent that the application is made in contravention of this section." (Emphasis added.) 2. Division 2 of Part 4 is headed "Transfer, amendment or withdrawal of access applications." An agency may transfer an access application or part of an access application to another agency: s 44. If only part of an application is transferred, the agency may "split an application into 2 or more applications" and treat them as separate applications: s 44(2). 3. An applicant may amend an access application "at any time before the agency decides the application": s 49. If the amendment reduces the scope of the application, the agency does not have to consent to the amendment: s 49(2). Under s 50, a person may withdraw an access application at any time before notice of the agency's decision is given. Process for dealing with access applications 1. Division 3 of Part 4 is headed, "Process for dealing with access applications". 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. Section 51 provides that: 51 Initial decision as to validity of application (1) 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. Note. An application is not a valid access application if it is an application for excluded information of the agency or does not comply with the formal requirements for access applications. (2) An agency's decision as to the validity of an application must be made and notified to the applicant as soon as practicable after the agency receives the application and in any event within 5 working days after the application is received. Note. The decision as to the validity of an application is reviewable under Part 5. (3) An acknowledgement of receipt of a valid access application must include the following— (a) the date by which the application is required to be decided (subject to any suspension or extension of the time for deciding an application), (b) a statement that the application will be deemed to have been refused if not decided by the required date, (c) the following statements about the inclusion of information in the agency's disclosure log (unless the agency considers it unlikely that information about the application will be included in the disclosure log)— (i) a statement that information concerning the application is likely to be included in the agency's disclosure log and that the applicant can object to this, (ii) a statement about the right of review under Part 5 of a decision by the agency to include information in its disclosure log despite the applicant's objection, (d) such details of rights of review in connection with access applications as the Information Commissioner may from time to time direct. (4) Acknowledging receipt of an application as a valid access application does not prevent the agency from subsequently deciding that the application is not a valid access application. (5) An agency's decision that an application is not a valid access application is presumed to be correct, subject to any review of the decision under Part 5. 1. Section 51A is headed "Effect of waiver, reduction or refund of application fee." That provision sets out the circumstances in which an agency is not to treat an application as being an invalid access application because of non-payment of the required application fee. 2. Section 52 sets out the steps that the agency must take to assist a person to make a valid application. If a reason the application is invalid is that the applicant has failed to provide required information, the agency must invite the applicant to provide the information. The application becomes a valid access application if the applicant provides the required information: s 52(2). Under s 52(3): (3) 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 valid access application. 1. Division 4 of Part 4 is headed "Deciding applications". If an application is a valid application, the agency must determine whether to provide access to the information or make one of the other decisions listed in s 58. Under s 58(2), "More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for." 2. Division 5 relates to processing charges and advance deposits and Division 6 sets out how access is to be provided. Relevant facts 1. The government information Mr Zonnevylle requested in his application relate to previous applications and complaints that he had made to the Civil and Administrative Tribunal (NCAT), policy documents and statistical data held by NCAT and information about NCAT Members and Registry officers. The application is reproduced in full at Appendix A. 2. At clause 10(c)(xiii) of his application, Mr Zonnevylle asked for the following information: a. Number of requests for compensation sought by Applicant as a result of an NCAT review b. number of compensation requests upheld / awarded by the Tribunal (incl. member name) c. number of compensation requests refused by the Tribunal (incl. member name) 1. As provided for in s 51, the Department initially acknowledged receipt of the application as a valid access application. Later, the Department advised Mr Zonnevylle that it had changed its mind and that the application was not a valid access application (the invalidity decision). In accordance with the requirements in s 52 and s 53, when notifying Mr Zonnevylle of the invalidity decision, the Department asked Mr Zonnevylle to clarify whether he meant by "compensation", "compensation sought as a result of an NCAT review" or costs orders: Further clarification is required in relation to your request for "compensation sought as a result of an NCAT review" or a cost order. "Please specify if your request is for compensation: A) awarded to a party to the proceedings as a consequence of findings in the substantive matter brought before the NCAT AEOD; or B) cost orders made in NCAT's AEOD division. 1. The Department asked Mr Zonnevylle to clarify the information he was seeking or withdraw the application, in which case his application fee would be returned. Mr Zonnevylle did not clarify the information he was seeking. Having not received a response to their request for further information, the Department 'closed' Mr Zonnevylle's application and refunded the application fee. The Department also advised Mr Zonnevylle that if he disagreed with the invalidity decision he may seek review under s 80(a) of the GIPA Act. Mr Zonnevylle applied to the Tribunal for administrative review of the Department's invalidity decision: s 100. Tribunal's decision Tribunal's role and issues 1. Under Part 5 of the GIPA Act, entitled "Review of decisions", a decision that an application is not a valid access application is a reviewable decision: s 80(a). When determining an application for an administrative review of an invalidity decision, "the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it": Administrative Decisions Review Act 1997 (NSW), s 63(1). The Department has the burden of establishing that its decision is justified: GIPA Act, s 105(1). 2. During the proceedings, the Tribunal raised the following issue as relevant to its determination on the review and obtained submissions from the parties: [W]hether an access application should be held invalid because of a failure to comply with s 41(1)(e) in circumstances where only part of the application does not include such information as is reasonably necessary to enable the government information applied for to be identified? Findings of fact 1. The Tribunal decided that the three items of information Mr Zonnevylle had requested at clause 10(c)(xiii) of his application did not comply with "the requirement to identify the government information" in s 41(1)(e). That part of the application did not sufficiently identify what was meant by the term "requests for compensation sought as a result of an NCAT review." Decision at [82]. The severability conclusions 1. The Tribunal reached the following conclusions at [89]: . . . an application which, in a severable part, does not include sufficient information to enable the government information applied for to be identified is not thereby wholly invalid. I have concluded that when s 41(1) and s 51(1) are read in the context of the GIPA Act as a whole, it is apparent that they are not intended to require an application be treated as wholly invalid if insufficient information is provided in respect of a severable part. By severable part I mean a part of an access application which may be excluded from the access application without rendering the balance of the application meaningless or incoherent. 1. We will refer to these conclusions as "the severability conclusions". At [97], the Tribunal addressed the Department's concern that partial invalidity would mean that an application would be valid even if only one per cent of the application adequately identified the requested government information. At [98], the Tribunal came to the following conclusion: Of far more significance to the correction (sic) construction of s 41 is a circumstance such as this case where, as I have determined, only a very small part of the application contains insufficient information. On the Departments' construction, that lack of information in a very small and severable part of the application would have the effect that the entire application would be considered invalid. I do not consider that to be the correct approach. 1. Applying that definition of "severable part" to the facts, the Tribunal decided at [89], that clause 10(c) (xiii) of Mr Zonnevylle's application is a "clear example" of a "severable part" of the access application. It was "one sub-paragraph of a lengthy list of categories of documents." The Tribunal decided that the balance of the access application was a valid access application. The Tribunal made the following orders: 1. Save in respect of sub-clause 10(c)(xii) of the list of categories of documents sought, set aside the decision that the applicant's application lodged on 31 August 2018 was not a valid access application. 2. In substitution for that decision, confirm that, apart from sub-clause 10(c)(xiii) of the list of categories of documents sought, the applicant's application lodged on 31 August 2018 is a valid access application. 1. The Tribunal relied on four aspects of the GIPA Act in support of "the severability conclusions": 1. the objects of the GIPA Act; 2. the terms of s 51(1) which refer to "an application for access to government information that it appears is intended to be an access application"; 3. the terms of s 43(2) which provide that an application for government information is not a valid access application "to the extent that the application is made in contravention of this section", and 4. the terms of s 58(2) that "more than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for". 1. The Tribunal also considered the consequences of finding that an application is invalid because a very small part of an access application contains insufficient information. Purposive construction Contemporary approach to statutory interpretation 1. In Statutory Interpretation in Australia, Pearce and Geddes (9th ed, 2019, LexisNexis Butterworths) at 33 regard the following passage from the High Court decision of SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405; (Kiefel CJ, Nettle and Gordon JJ) at [14], as summarising the contemporary approach to statutory construction: The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. 1. Considerations of context and purpose include the consequences of adopting the ordinary or grammatical meaning: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 384; 153 ALR 490 at [78]: The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. 1. In SZTAL, at [37]–[39], Gageler J emphasised that context, in the broad sense, is only useful to the extent that it assists in understanding the meaning of the text: … The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility 'if, and in so far as, it assists in fixing the meaning of the statutory text'. (Citations deleted and emphasis added.) 1. The highlighted quote comes from Federal Cmr of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at 519 [39]. If an understanding of context does not assist in fixing the meaning of the statutory text, it is not useful. 2. Pearce and Geddes go on, at 33, to state that " . . . the application of this approach will in most cases lead a court to having to make what is commonly referred to as a 'constructional choice'." The authors then explain that the constructional choice is sometimes between ". . . one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised." Ordinary and grammatical meaning of the text 1. Section 41 sets out five requirements (the formal requirements) with which a request for government information must comply for it to be a valid access application. By stating that the consequence of non-compliance is invalidity, the legislature has avoided any debate as to whether an act done in breach of that provision is invalid: Project Blue Sky v Australian Broadcasting Authority (1998 HCA 25 at [93]; City of Port Adelaide Enfield v Minister for Transport and Urban Planning [1999] SASC 73; (1999) 73 SASR 22. On a plain reading of the text of s 41(1), each of the requirements at paragraphs (a) – (e) must be complied with. 2. The first four formal requirements in s 41(1)(a) – (d) require that an application: be in writing; be posted to or lodged with the agency; clearly indicate that it is an access application; and be accompanied by a fee and state the name and address of the applicant. The "requirement to identify government information" in s 41(1)(e) is that the application "must include such information as is reasonably necessary to enable the government information applied for to be identified". That provision requires the agency to make an evaluative judgment as to whether the information provided enables the government information applied for to be identified: s 41(1)(e). If it does not, the application will be invalid. 3. The GIPA Act contemplates that an applicant may apply for more than one item of government information: see, for example, s 58(2). The plain meaning of the words "the government information" in s 41(1)(e) is all the government information applied for. Parliament has not identified a sub-set of the government information applied for which should be carved out from the application. Constructional choice 1. Relying on the objects of the legislation, the statutory context and the consequences of interpreting "the requirement to identify the government information" consistently with its ordinary or grammatical meaning, the Tribunal concluded that the legislature intended to convey a meaning that was different from the ordinary or grammatical meaning. We interpret the Tribunal's decision as implying that it was faced with a "constructional choice". Should the Tribunal give effect to the ordinary or grammatical meaning of s 41(1)(e) or should it imply words into the text of that provision to reflect the legislature's intention? 2. The Tribunal did not formulate the words that would have to be implied into the text of s 41(1)(e) to reflect its understanding of the legislature's intention. On our understanding of the Tribunal's severability conclusions, the words "except for any severable part" would have to be read in to s 41(1)(e). That provision would then make it a "formal requirement" of a valid access application to "include such information as is reasonably necessary to enable the government information applied for, except for any severable part of that information, to be identified." In accordance with the Tribunal's decision, the term "severable part" would be defined to mean, "A part of an access application which may be excluded from the access application without rendering the balance of the application meaningless or incoherent". Extra words would also have to be read in to s 51 to give an agency a third option of notifying the applicant that the application is partly valid and partly invalid. Reasoning and conclusion Summary 1. In our view, the ordinary and grammatical meaning of the text of s 41(1)(e) is that, to be valid, an application for government information must include such information as is reasonably necessary to enable all the government information applied for to be identified. Applying the contemporary approach to statutory construction, we need to consider the purpose of the requirement to identify the government information as revealed by the legislative context, the objects of the GIPA Act and the consequences of construing that requirement in its ordinary or grammatical sense. That overall context will be relevant if it assists in fixing the meaning of the requirement to identify the government information. 2. We have concluded from the overall context that the purpose of s 41(1)(e) is to provide certainty as to when the "legally enforceable right" to be provided with access to government information arises. That right arises when a person makes a valid access application: ss 4, 9 and 41. The requirement to identify the government information ensures that an agency has sufficient information to enable it to identify, consider and make a decision about the government information applied for. We explain our reasons for reaching this conclusion and for not agreeing with the Tribunal's severability conclusions in more detail below. Legislative context Section 51 1. When an agency receives an application for access to government information, it must decide whether the application is a valid application. If it is a valid application, the agency is to notify the applicant that the agency has received the application and that it is a valid application or to notify the applicant that the application is not a valid access application. There is no power given to an agency by s 51, or by any other provision in Part 4, to treat any application which does not comply with the requirement to identify the government information, as partly valid and partly invalid. That situation may be contrasted with other provisions in Part 4, which do provide for an application to be split. We address s 43 and s 44 in more detail below. 2. The Tribunal did not focus on the choice the agency is given in s 51 to notify an applicant that the application is either valid or invalid. Rather, at [92] and [93], the Tribunal relied on the words "an application for access to government information that it appears is intended to be an access application" as supporting the "severability conclusions": The second aspect of the legislation is the fact that s 51(1) refers to "an application for access to government information that it appears is intended to be an access application". That suggests that the requirements of s 41 are not, as the Department submits, requirements that must be strictly complied with, without room for flexibility. Section 41(1)(b) requires that an application "must clearly indicate that it is an access application made under this Act". If that were intended to be an inflexible requirement, then there would be no purpose to the inclusion in s 51 of the words "appears is intended to be an access application", as any access application would clearly indicate that it is an access application. The fact that s 41(1)(b) is not required to be strictly complied with undermines the Department's submission that "the formal requirements of s 41(1) are to be read strictly". 1. Section 51 is headed "Initial decision as to validity of application." It applies whenever an agency receives "an application for access to government information" whether that application is a valid application or not (Section 4(1) defines "access application" to be a valid access application). If "it appears" that "the application is intended to be an access application" the agency is to consider whether it complies with each of the formal requirements listed in s 41(1). Consideration of validity is a two-step process. First, the agency must determine whether "it appears that the application is intended to be an access application". Secondly, the agency must decide whether the application is a valid application. 2. One of the formal requirements for validity is that "it must clearly indicate that it is an access application made under this Act." The Tribunal reasoned at [93] that: If that were intended to be an inflexible requirement, then there would be no purpose to the inclusion in s 51 of the words "appears is intended to be an access application", as any access application would clearly indicate that it is an access application. 1. In our view there is a legitimate purpose in including the words "appears is intended to be an access application" in s 51(1). Those words ensure that an agency considers the validity of any communication that appears to be intended to be an access application even if, on closer scrutiny, it is not a valid access application because it does not comply with any one of the formal requirements. Nothing in s 51 suggests that an applicant must not comply strictly with s 41(1)(b). Section 43(2) 1. At [94], the Tribunal gave a third reason for coming to the severability conclusions: The third aspect of the legislation is s 43(2), which provides that an application for government information is not a valid access application "to the extent that the application is made in contravention of this section", in that it seeks access to "excluded information of the agency" (that is information relating to any function specified in Schedule 2 in relation to the agency). The clear intention of s 43(2) is that an application for government information may not be a valid access application to the extent that it seeks excluded information of an agency but will nevertheless be a valid access application to the extent it seeks other information of the agency. 1. Section 43(1) prohibits the making of an access application for "excluded information." Section 43(2) expressly provides that to the extent that such an application is made, the application is invalid. There is no corresponding express provision in s 41(1). In our view, the omission was deliberate. If Parliament's intention was to make an application invalid, but only to the extent that the application does not include sufficient information, it would have used the same or similar words to those used in s 43(2). 2. Similarly, s 44 provides that an agency may, for the purposes of transferring only part of an access application "split an application into 2 or more applications", with any resulting application to be treated as a separate application. If Parliament's intention was to split an application which partly complied with the requirement to identify the government information, it would have used the same or similar words to those used in s 44. Section 58(2) 1. The fourth aspect of the Tribunal's reasoning was that when determining a valid access application, an agency may make more than one decision to deal with various items of information applied for. At [95] – [96], the Tribunal explained this reasoning: The fourth aspect of the legislation is s 58(2), which provides that "more than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for". Thus, an agency is permitted to decide that some information is to be provided, and that other information should not be provided, because there is an overriding public interest against disclosure, or because the agency decides to refuse to deal with that part of the application pursuant to s 60, for example because dealing with that part of the application would require an unreasonable and substantial diversion of the agency's resources. That fact that s 58 clearly permits applications to be read distributively, that is as effectively multiple applications in respect of severable parts of the application, is in my view a further indication that it is the intention of ss 41 and 51 that, if an agency concludes that a severable part of an application does not include sufficient information to enable the information sought to be identified, the agency may notify the applicant that that part of the application is not a valid application. 1. Section 58(2) provides that: More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for. 1. That provision applies to "access applications", that is, applications that have been accepted as valid under Part 4 of the GIPA Act: s 4. Section 51(1), headed "initial decision as to validity of application", does not contain a similar provision allowing more than one decision to be made about the validity of various items in an application. If Parliament's intention was that an agency could make more than one decision as to the validity of an application, it would have used the same or similar words to s 58 (2). Objects of the legislation 1. Section 3 states that: Object of Act (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— (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure." (2) 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. 1. At [91], the Tribunal highlighted the object of the GIPA Act as the first aspect of the legislation supporting "the severability conclusions": The first (aspect) is the object of the GIPA Act set out in s 3(1)(a) of encouraging the proactive public release of government information and the intention expressed in s 3(2) that the Act should be interpreted so as to further the object of the Act. In my view, a construction which would have the result that an ambiguity or insufficiency of description in a minor and severable part of an access application will make the whole application invalid would not encourage the proactive public release of government information. (Word in bracket added.) 1. The Tribunal relied, in particular, on s 3(1)(a) and s 3(2). We assume that the Tribunal meant to rely on s 3(1)(b) because access applications, rather than the proactive public release of information, is the subject matter of these proceedings. (Sections 6 and 7 of the GIPA Act deal with mandatory and authorised proactive release of certain government information.) 2. The Interpretation Act 1987 (NSW), s 33 is headed 'Regard to be had to purposes or objects of Acts and statutory rules': In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object. 1. Dawson J explained the effect of the equivalent Victorian provision in Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214; 91 ALR 16 at [19]: [T]he literal rule of construction, whatever the qualifications with which it is expressed, must give way to a statutory injunction to prefer a construction which would promote the purpose of an Act to one which would not, especially where that purpose is set out in the Act. Section 35 of the Interpretation of Legislation Act must, I think, mean that the purposes stated in Pt 5 of the Road Safety Act [1986 (Vic)] are to be taken into account in construing the provisions of that Part, not only where those provisions on their face offer more than one construction, but also in determining whether more than one construction is open. 1. Section 9 gives an applicant a legally enforceable right to be provided with access to information "in accordance with Part 4 . . . unless there is an overriding public interest against disclosure of the information." The object in s 3(1)(b) echoes that right and s 3(2) states that it is Parliament's intention that the GIPA Act be interpreted so as to further that object. 2. The legally enforceable right to be provided with access to government information must be "in accordance with Part 4". Section 41, which is in Part 4, contains the requirement to identify the government information. The object in s 3(1)(c) of providing that access to government information is restricted only when there is an overriding public interest against disclosure, is merely a re-statement of s 9, without the qualification that the application must be in accordance with Part 4. In the words of Cole JA, "the objects clause does not control clear statutory language or command a particular outcome": Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 at 78. It follows that that the object clause does not support the Tribunal's severability conclusions. Consequences of a particular interpretation 1. If an agency decides that an access application is wholly invalid because it does not comply with the requirement to identify the government information in s 41(1) (e), the agency must explain why the application is not a valid access application and invite the applicant to provide the information: s 52(1)(a) and (c). The agency must also provide advice and assistance "so far as it would be reasonable to expect the agency to do so": s 52(3). 2. Citing s 52, the Tribunal concluded at [87], that a decision under s 51, that an application is wholly invalid, "would not have extreme or inconvenient consequences". In the Tribunal's words, ". . . the matter could easily be rendered valid either by the provision of further information or the withdrawal by the applicant of the relevant part of the request." It appears that the Tribunal did not regard the consequences of an application being wholly invalid as supporting its severability conclusions. We agree. Implying words into the text of legislation 1. As we have said, if the Tribunal did have a 'constructional choice' when interpreting s 41(1)(e), words can only be implied into the text of legislation in very limited circumstances. 2. When the ordinary meaning of a provision does not give effect to the purpose or object of the legislation, courts may imply words into the text. The High Court explained the circumstances in which it may do so in Taylor v Owners— Strata Plan No 1 1564 [2014] HCA 9; (2014) 253 CLR 531; 306 ALR 547. The majority (French CJ, Crennan and Bell JJ) said at [37]–[38] (citations omitted), that: The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision … It is answered against a construction that fills 'gaps disclosed in legislation' … or makes an insertion which is 'too big, or too much at variance with the language in fact used by the legislature'. 1. The majority added at [39], that "any modified meaning must be consistent with the language in fact used by the legislature." Pearce and Geddes interpret Taylor as having ". . . drawn the line at reading words into or out of an Act in order to give the Act what a court perceives to be its purpose." The authors quote the dissenting judgment of Gageler and Keane JJ at [66], that 'construction is not speculation, and it is not repair' as an accurate summary of the position. 2. In our view, the Tribunal has attempted to 'repair' s 41(1)(e) by, in effect, inserting additional words which it perceives are consistent with the legislature's intention. With respect, the additional words are too much at variance with the language in fact used by the legislature. 3. The appeal is upheld. Applications by Mr Zonnevylle for miscellaneous orders Summary of orders sought 1. Mr Zonnevylle lodged two "General application form[s] - miscellaneous orders" seeking seven "interlocutory orders". In summary, the subject matter of those "applications" were that: 1. the Department have filed the appeal out of time; 2. the Department decided his GIPA application on the wrong application; 3. Item 10c.xiii of the access application is severable under s 75(2) of the GIPA Act; 4. the questions of law in submissions to be addressed in detail and the Tribunal is to comply with the obligation to give reasons; 5. the Senior Member should participate in the appeal to defend his own decision; 6. Mr Zonnevylle was not given a further opportunity to make submissions; and 7. the Appeal Panel should answer various questions of law or refer those questions to the Supreme Court. Appeal lodged out of time 1. This order was sought on the premise that the appeal was lodged out of time. That is not correct. Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) requires an internal appeal to be made "within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later)." Rule 6 provides that, when reckoning a period of time that has been fixed by the Rules by reference to a given day or event, the given day or the day of the given event is not to be counted. The Department was given the reasons for the decision on 22 October 2019. The Department lodged the Notice of Appeal 28 days later, on 19 November 2019. Excluding the day the Decision was provided to the parties, the Notice of Appeal was filed on the 28th day. The appeal was lodged within time. The "application" on this ground is misconceived and is dismissed. The Department decided his GIPA application on the wrong application 1. Mr Zonnevylle contends that his access application was not initially determined within the time-frame prescribed by the GIPA Act. The Department's failure to determine the application within time was, he said, a deemed "refusal to deal." The Tribunal should have reviewed that decision, and not the invalidity decision. The Tribunal addressed that issue at [57] – [58] of the Decision. We could not identify any error in this part of the Tribunal's decision. This "application" is dismissed. Item 10c.xiii is severable under Sect. 75(2) 1. Mr Zonnevylle sought this order on the premise that the decision below was manifestly correct. For the reasons we have given, we do not agree. The "application" for summary dismissal of the appeal on this ground is dismissed. Questions of law in submissions to be addressed in detail 1. Mr Zonnevylle asks the Appeal Panel to comply with its statutory obligation under s 62 of the NCAT Act. That provision requires that the Tribunal give reasons within 28 days of any written request for reasons. Mr Zonnevylle has not requested reasons, but we have provided them. In our view, they comply with the requirements in s 62(3). The "application" for this order is dismissed. Senior Member to defend his own decision 1. This aspect of the application seeks an order that the Senior Member who made the decision which is the subject of the appeal actively participate in the appeal and support his conclusions. The member is not a party to the appeal: NCAT Act, s 44(3). The "application" for this order is misconceived and is dismissed. Further opportunity to make submissions 1. Mr Zonnevylle submitted that procedural fairness requires that he be given the opportunity to make further submissions. He is not a lawyer and is self-represented. He has very limited resources compared with the legal representatives for the Department. 2. The directions made by the Appeal Panel on 26 November 2019, were varied on 29 January 2020 after the Information Commissioner elected to become involved in the proceedings. That timetable always provided for Mr Zonnevylle to be given the last opportunity to lodge submissions in the substantive appeal. 3. To the extent that the application for this order relates to one or more of the miscellaneous applications and interlocutory orders sought by Mr Zonnevylle, we are not satisfied that it should be granted. Mr Zonnevylle had the opportunity to support those applications with submissions and the Department was given an opportunity to respond. Allowing Mr Zonnevylle a further opportunity to respond to those submissions would have unnecessarily prolonged the proceedings without assisting us to resolve the real issues in dispute in the appeal: NCAT Act, s 36. This "application" is dismissed. Referral of questions of law 1. Mr Zonnevylle requested that a list of questions be answered by the Appeal Panel or be referred to the Supreme Court under s 54 of the NCAT Act. According to Mr Zonnevylle, these questions are relevance to the statutory obligations of the Tribunal to address his misconduct complaints. 2. The questions are organised under the following headings: "Tribunal statutory obligations"; "Agency statutory obligations"; "IPC statutory obligations" and "Applicant's GIPA Act rights (Public rights)". They comprise several pages of questions mixed with assertions and commentary. 3. As was said by a differently constituted appeal Panel in Zonnevylle v Department of Justice [2019] NSWCATAP 44, at [90]: The Appeal Panel has power to "refer a question of law arising in the proceedings to the Supreme Court for the opinion of the Court": NCAT Act s 54. Before a question of law can be referred to the Supreme Court, it must arise in the proceedings: NCAT Act, s 54. A question can only arise in Appeal Panel proceedings if it concerns an "internally appealable decision": NCAT Act, s 80(1). Unless a question is a question of law that arises from an interlocutory or final decision, we have no power to refer it. If we have internal appeal jurisdiction in relation to a question, we have a discretion to refer that question. Issues which may be relevant to the exercise of the discretion were discussed in Independent Liquor and Gaming Authority v Auld [2018] NSWCATAP 68; and Khalaf v Commissioner of Police; QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATOD 191. 1. We have addressed all the questions that arise on appeal in these reasons. None of the other questions posed by Mr Zonnevylle arise in the appeal proceedings. There is no mechanism for this Tribunal, or the Supreme Court, to answer any of the questions about statutory obligations. The "application" for this order is dismissed. Appeal filing fee 1. Mr Zonnevylle requested confirmation that the Department had paid the correct filing fee. NCAT's fees and charges are prescribed under the Civil and Administrative Tribunal Regulation 2013. The fees are to be paid to the Principal Registrar. The Appeal Panel is not empowered to inquire into whether the correct filing fee has been paid. Orders 1. A hearing of each of Mr Zonnevylle's applications for interlocutory orders and applications for miscellaneous orders is dispensed with. 2. The appeal is upheld. 3. Orders 1 and 2 made on 22 October 2019 are set aside. 4. In substitution for those orders, the following orders are made: 5. The decision of the Department of Communities and Justice that Mr Zonnevylle's application for access to government information received on 5 September 2018, is invalid, is affirmed. 6. Each of Mr Zonnevylle's applications for interlocutory orders and applications for miscellaneous orders is dismissed. ********** Appendix I The access application v Documents sought: NCAT AEOD 1 Copy of email dated April 13, 2018 sent to pzgipa@yahoo.com.au (Email to include the full Email Header information for verification & proof of delivery) 2. NCAT Email log showing the SEND details of the above email (log to show Date / Time; Sender; To / Receiver; Subject; file attachments, etc) 3 Documents / emails showing NCAT officer who corresponded with Forbes for the Applicant's GIPA application 4. Documents / emails showing CSO officer who corresponded with Forbes for the Applicant's GIPA application 5. Documents detailing the name of the Registrar providing each notice for File 2017 / 00319363 6. Documents detailing the name of the Registrar providing each notice for File 2017 / 00060025 7. Documents detailing the members of the Executive Committee concerning Zonnevylle's Complaint against Ransome (May 14, 2018 hearing) 8. Documents detailing why Tribunal members cannot answer questions at hearings Referencing specific legislation (Acts / Statutes / etc) 9 Documents detailing Conduct obligations (Referencing specific legislation (Acts / Statutes / etc)) a. Documents detailing ALL relevant codes of conduct for NCAT Tribunal members b. Documents detailing all relevant codes of conduct for President & Deputy President of NCAT c. Documents detailing all relevant codes of conduct for Registrars d. Documents detailing codes of conduct imposed on Applicants e. Documents detailing the restrictions on the summonsing of witnesses based on their status / Position (i.e why decision makers or any other officers cannot be summonsed) 10. Other documents / information required as Statistics/ Excel records for: a. Summons applications i. Number of Summons applications made by Applicants for AEOD matters ii. Number of Summons made by Applicants approved by a. Tribunal member (name of member) b. Registrar (name of registrar) iii. Number of Summons refused by. a. Tribunal member (name of member) b. Registrar (name of registrar) b. Fee waivers i. Number of Fee Waiver applications made by Applicants for AEOD matters ii. Number of Fee Waiver applications made by Applicants a. On grounds of hardship b. On grounds of special benefit c. Name of Registrar who made the decision iii Number of Fee Waiver applications approved: a. On grounds of hardship b. On grounds of special benefit c. Name of Registrar who made the decision iv Number of Fee Waiver applications refused by: a. On grounds of hardship b. On grounds of special benefit c. Name of Registrar who made the decision c. Tribunal members & registry officers i. Names of all AEOD Tribunal members (& details whether full time or part time member) ii. Details how each member was appointed (Governor; Attorney General; President; other) iii. Number of days claimed by each Tribunal member for work associated with NCAT iv. Hours worked by each Tribunal member v. Complaints made against each Tribunal member a. Complaints dismissed b. Complaints acted on vi. Names of all AEOD registry officers vii. Complaints made against each registry member a. Complaints dismissed b. Complaints acted on viii. a. Religious denomination of Tribunal members / Registry officers b. Ethnicity / Race of Tribunal members / Registry officers ix. a. Details on which Tribunal member has been asked / requested / required to recuse themselves from any NCAT matter (hearing / decision / other) b. Details on which Tribunal members have recused themselves from any NCAT matter c. Details on which Tribunal members. Details on which Tribunal members have refused to recuse themselves from any NCAT matter x. a. Number of hearing recordings requested & paid for by Applicant b. Number of hearing recordings requested & paid for by Respondent c. Record of delivery times / availability of recordings to Applicant (I.e.Time between receiving application & despatch of recording) d. Record of delivery times / availability of recordings to Respondent (I.e.Time between receiving application & despatch of recording xi. a. Number of Applicants provided permission to record the hearing (Court Security Act Sect.9.2.a.) b. Number of Applicants refused permission to record the hearing (Court Security Act Sect.9.2.a.) xii. Number of complaints received by NCAT concerning recording's quality xiii. a. Number of requests for compensation sought by Applicant as a result of an NCAT review b. number of compensation requests upheld / awarded by the Tribunal (incl. member name) c. number of compensation requests refused by the Tribunal (incl. member name) NOTES: Period Sect.16 Time period for the above Is from Jan. 1,2017 to Sept.5,2018 The Applicant requires advice & assistance to enable the access to as much of the requested information as possible (as required under the objective of the GIPA Act). For any re-scoping the Applicant reserves the right to make an informed decision. The Applicant also reserves the right to question the officer regarding interpretations & Application of the Act (& associated legislation / conduct obligations) The GIPA Act requires the exercising of any functions to by an officer to be made in good faith / proper conduct. The processing officer is required to provide full disclosure concerning their conduct obligations as a GSE / DoJ officer Exclusions The Applicant has a pending Sect.112 complaint against Forbes It would be inappropriate for Forbes to be associated with this access application. Forbes is required to be excluded from the processing of this application Notices All correspondence is required to be sent by email to minimize delays 3rd parties All third parties are to be identified / disclosed for the Applicant's reference Appendix 2 Main provisions referred to in the body of the Decision. Sections 41 41 How to make an access application (1) 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 oncerned 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. (1A) If the applicant has applied at any time to another agency for substantially the same information, an application must also include the name of the other agency. However, failure to comply with this subsection does not affect the validity of an application. (2) An agency may approve additional facilities for the making of an access application or the payment of an application fee. (3) An access application is not considered to have been received by an agency until it is actually received by the agency. 43 Access application cannot be made for excluded information (1) An access application cannot be made to an agency for access to excluded information of the agency. Note. Information is excluded information of an agency if it relates to any function specified in Schedule 2 in relation to the agency. (2) An application for government information is not a valid access application to the extent that the application is made in contravention of this section. 44 Ways in which applications can be transferred (1) An agency that receives an access application for government information can transfer the application to another agency either by agency-initiated transfer or by applicant-initiated transfer, as provided by this Division. Note. A decision to transfer an application to another agency is reviewable under Part 5. (2) An agency may, for the purposes of transferring only part of an access application, split an application into 2 or more applications. Any resulting application is to be treated as a separate application by the applicant. 51 Initial decision as to validity of application (1) 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. Note. An application is not a valid access application if it is an application for excluded information of the agency or does not comply with the formal requirements for access applications. (2) An agency's decision as to the validity of an application must be made and notified to the applicant as soon as practicable after the agency receives the application and in any event within 5 working days after the application is received. Note. The decision as to the validity of an application is reviewable under Part 5. (3) An acknowledgement of receipt of a valid access application must include the following— (a) the date by which the application is required to be decided (subject to any suspension or extension of the time for deciding an application), (b) a statement that the application will be deemed to have been refused if not decided by the required date, (c) the following statements about the inclusion of information in the agency's disclosure log (unless the agency considers it unlikely that information about the application will be included in the disclosure log)— (i) a statement that information concerning the application is likely to be included in the agency's disclosure log and that the applicant can object to this, (ii) a statement about the right of review under Part 5 of a decision by the agency to include information in its disclosure log despite the applicant's objection, (d) such details of rights of review in connection with access applications as the Information Commissioner may from time to time direct. (4) Acknowledging receipt of an application as a valid access application does not prevent the agency from subsequently deciding that the application is not a valid access application. (5) An agency's decision that an application is not a valid access application is presumed to be correct, subject to any review of the decision under Part 5. 52 Agency assistance with invalid applications (1) The notification of an agency's decision that an application is not a valid access application must— (a) include a statement of the reason why the application is not a valid access application (including reference to 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 a 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. (2) 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 when the fee or information was received by the agency. (3) 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 valid access application. (4) (Repealed) (5) An applicant is entitled to a refund of any application fee that accompanied an invalid access application (unless the application subsequently becomes valid). 58 How applications are decided (1) An agency decides an access application for government information by— (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or (c) deciding that the information is already available to the applicant (see section 59), or (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or (e) deciding to refuse to deal with the application (see section 60), or (f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact. Note. These decisions are reviewable under Part 5. (2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for. (3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired. 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 June 2020