Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FVA v Commissioner of Police, NSW Police Force (No 2) [2024] NSWCATAP 210 Hearing dates: 9 August 2024 Date of orders: 23 October 2024 Decision date: 23 October 2024 Jurisdiction: Appeal Panel Before: Seiden SC DCJ, Deputy President D Robertson, Senior Member Decision: (1) The appeal is allowed. (2) The matter is remitted to the Administrative and Equal Opportunity Division of the Tribunal, differently constituted, to be reheard. Catchwords: GOVERNMENT INFORMATION — access to government information — considering conditions on access under s 73(2) of the GIPA Act — creation of a new record — "000" call and "personal information" ADMINISTRATIVE LAW — whether the Tribunal erred in failing to consider ss 73(2) and 74 of the GIPA Act — Whether failing to address a party's adjournment application and proceeding in their absence is a material breach of procedural fairness — standing in the shoes of the administrator under s 63(2) of the ADR Act — remittal to Tribunal STATUTORY INTERPRETATION — meaning of s 75 of GIPA Act — conflict of provisions — generalia specialibus non derogant — whether s 75(2) or s 72 is dominant Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW) Cases Cited: Australian Postal Corporation v Williams [2024] NSWCATAP 168 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Bellamy v Transport for NSW [2019] NSWCATAD 54 Evans v Chief Commissioner of State Revenue [2022] NSWCATAD 307 FHG v Cumberland City Council; Cumberland City Council v FHG [2023] NSWCATAP 91 FVA v Commissioner of Police, NSW Police Force [2024] NSWCATAP 127 FVA v Commissioner of Police, NSW Police Force [2023] NSWCATAD 236 Imbree v Chief Commissioner of State Revenue [2024] NSWCATAP 158 Liang v University of Technology, Sydney [2018] NSWCATAP 285 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 Marden v Pharmacy Council of New South Wales [2017] NSWCATAD 34 Mino v Legal Aid NSW [2015] NSWCATAD 245 Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 O'Grady v Sutherland Shire Council [2020] NSWCATAD 50 Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation (1948) 77 CLR 1; [1948] HCA 24 Refrigerated Express Lines (A'Asia) Pty Ltd v Australian Meat and Live-stock Corporation [1980] FCA 45; 29 ALR 333 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 Texts Cited: Dennis Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019) Category: Principal judgment Parties: FVA (Appellant) Commissioner of Police, NSW Police Force (Respondent) Representation: Appellant (self-represented) McCullough Robertson (Respondent) File Number(s): 2023/00305979 Publication restriction: On 28 June 2024, the Appeal Panel ordered that pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), publication or broadcast of the name of the appellant is prohibited. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2023] NSWCATAD 236 Date of Decision: 14 July 2023 Before: M Riordan, Senior Member File Number(s): 2023/00077447 REASONS FOR DECISION Procedural history 1. In August 2022, the appellant made a request to the respondent under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) for access to a call recording, the call transcript and a complete Police incident report. The respondent determined that it would not be in the public interest to provide the call recording and further that an incident report did not exist. There is also no transcript of the call recording in existence. However, the respondent determined to release, in part, a Computer Aided Dispatch (CAD) Report. 2. The appellant filed an application for internal review by the respondent and an application for external review by the Information and Privacy Commissioner. The appellant then sought review by the Tribunal. 3. The matter was listed for hearing on 14 July 2023 and heard and determined on that day: FVA v Commissioner of Police, NSW Police Force [2023] NSWCATAD 236 (the Substantive Decision). 4. In the Substantive Decision (at [153]), the Tribunal weighed the public interest considerations in favour of disclosure against those that tended against disclosure and determined to affirm the respondent's decision. Of the factors that tended against disclosure, it was relevant to the Tribunal that some of the information was personal information of persons other than the appellant and further, the Tribunal accepted that revealing information from a "000" call might prejudice the agency's supply of confidential information: Substantive Decision, at [86] and [138]–[151]. We pause to note that in the internal review decision, the call was described as coming in on the Police Assistance Line (the PAL). The same considerations were said to arise as for a "000" call. For consistency, we continue to refer to the call as a "000" call. 5. On 28 June 2024, the Appeal Panel delivered its decision on several aspects of the appeal: FVA v Commissioner of Police, NSW Police Force [2024] NSWCATAP 127 (the First Appeal Decision). Relevant to this decision, in brief, the Appeal Panel found in the First Appeal Decision that: 1. an adjournment request of the appellant's had not been determined: at [95]; 2. the adjournment request was not hopeless: at [118]; and 3. s 73(2) of the GIPA Act, which concerns conditions on access, had not been considered: at [128]. 1. In the First Appeal Decision at [134]–[135], the Appeal Panel said: "[134] Had the adjournment application been granted (and we do not say that this was inevitable or even likely, but merely possible), the appellant would have been able to participate in the adjourned hearing, cross-examine, and make submissions. This may well have exposed 'other' public interest factors; or the ones already considered may have weighed in the balance differently. Further, submissions on the form of access and conditions on how access was to be exercised, may have generated a different outcome. [135] As the respondent has not had an opportunity to address the Appeal Panel on whether there was practical injustice, particularly in light of ss 73(2) and 74 of the GIPA Act, the Appeal Panel will hear the parties in relation to this." 1. The Appeal Panel received further submissions and heard the parties again on 9 August 2024. Subsequently, the Appeal Panel received further written submissions. 2. The outstanding issues are as follows: 1. Whether the failure to address the appellant's adjournment application and proceeding in his absence caused a material breach of procedural fairness. This depends on whether the error could have affected the result: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 at [6] and [9]; Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 at [1]; Stead v State Government Insurance Commission (1986) 161 CLR 141 at pp 145–146; [1986] HCA 54. 2. Whether there is a question of law or whether leave to appeal should be granted, in relation to whether the Tribunal erred in failing to consider ss 73(2) and 74 of the GIPA Act. Relevant legislation 1. Section 3 of the GIPA Act provides: 3 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. The expression "government information" is defined in s 4 of the GIPA Act to mean "information contained in a record held by an agency". The expression "record" is defined in cl 10 of Sch 4 to the GIPA Act, which provides as follows: 10 Meaning of "record" (1) In this Act— record means any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner or by any other means. (2) A reference in this Act to a record includes a reference to a copy of the record. (3) For the purposes of the definition of record in this Act, the knowledge of a person is not a record. 1. Section 72 of the GIPA Act states: 72 Forms of access (1) Access to government information in response to an access application may be provided in any of the following ways— (a) by providing a reasonable opportunity to inspect a record containing the information, (b) by providing a copy of a record containing the information, (c) by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned), (d) by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format. (2) The agency must provide access in the way requested by the applicant unless— (a) to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or (b) to do so would be detrimental to the proper preservation of the record, or (c) to do so would involve an infringement of copyright, or (d) there is an overriding public interest against disclosure of the information in the way requested by the applicant. Note— Decisions about how to provide access are reviewable under Part 5. 1. Section 73 of the GIPA Act relevantly provides: 73 Access to be unconditional (1) An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. (2) A condition may be imposed as to how a right of access may be exercised (such as a condition that prevents an applicant making notes from or taking a copy of a record that is made available for inspection) but only to avoid there being an overriding public interest against disclosure of the information. … 1. Section 74 of the GIPA Act provides: 74 Deletion of information from copy of record to be accessed An agency can delete information from a copy of a record to which access is to be provided in response to an access application (so as to provide access only to the other information that the record contains) either because the deleted information is not relevant to the information applied for or because (if the deleted information was applied for) the agency has decided to refuse to provide access to that information. 1. Section 75 of the GIPA Act relevantly provides: 75 Providing access by creating new record (1) An agency is not prevented from providing access in response to an access application to government information held by the agency by making and providing access to a new record of that information. (2) An agency's obligation to provide access to government information in response to an access application does not require the agency to do any of the following— (a) make a new record of information held by the agency, (b) update or verify information held by the agency, (c) create new information, or produce a new record of information, by deduction, inference or calculation from information held by the agency or by any other use or application of information held by the agency. 1. Section 80 of the GIPA Act states: 80 Which decisions are reviewable decisions The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part— (a) a decision that an application is not a valid access application, (b) a decision to transfer an access application to another agency, as an agency-initiated transfer, (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, (f) a decision that information applied for is already available to the applicant, (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), (j) a decision to impose a processing charge or to require an advance deposit, (k) a decision to refuse a reduction in a processing charge, (l) a decision to refuse to deal further with an access application because an applicant has failed to pay an advance deposit within the time required for payment, (m) a decision to include information in a disclosure log despite an objection by an authorised objector (or a decision that an authorised objector was not entitled to object). 1. The onus lies on the agency to justify the decision: s 105(1) of the GIPA Act. Submissions The appellant's submissions 1. The Appeal Panel does not intend to rehearse each of the appellant's submissions. The Tribunal need not provide a meticulous response to every submission, especially when numerous submissions of varying significance are advanced: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443, New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 at [73], Liang v University of Technology, Sydney [2018] NSWCATAP 285 at [68]. 2. The appellant focussed on the fact that he does not accept that the respondent's witness was available for cross examination at the first-instance hearing; and maintains that he was misled by the Tribunal in this regard. This was considered by the Appeal Panel and dismissed: First Appeal Decision at [141]. Those submissions will not be reconsidered. Other submissions go to the appellant's need for the adjournment in the first place; including, that the Tribunal, of its own motion, adjourned the first hearing date and pushed the hearing into a time inconvenient to the appellant. We have already found that the adjournment application was not hopeless and will not consider these submissions further. 3. A critical submission of the appellant is that he already knows the personal information of the other persons that were the subject of the "000" call. The applicant submits that he had named them in his original application and the information he has been given access to by the respondent is responsive to that application. There was also a suggestion that the officers of the respondent might have already told the appellant the name of the caller. Accordingly, the appellant submits, there is no personal information to disclose and no confidentiality in the "000" call to protect. 4. Further, and taking a different perspective, the appellant maintains that the "000" call was made by a person who is not the person he claimed to be. The person the appellant named in the application as the alleged caller is someone he says does not "reside in the same jurisdiction" and the appellant maintains the caller could not have been this person. In support of this, he submits that, at the relevant time, this person was overseas and could not make a "000" call, as "000" calls cannot be made outside of Australia. The residency of the caller is referred in the Substantive Decision (at [14]) but whether a "000" call (or a call on the PAL) can emanate from outside Australia, was not the subject of evidence before the Appeal Panel. 5. As to the Appeal Panel's consideration about alternative access to the information, the appellant submits that the discretions in s 73(2) and elsewhere are reviewable by the Tribunal, as the Tribunal stands in the shoes of the administrator for the purposes of the review: s 63 of the Administrative Decisions Review Act 1997 (ADR Act). Nevertheless, he maintains that only full access will suffice. That is to say, the appellant is still seeking access to the whole of the call recording, an unredacted version of the CAD report, and other records he maintains relate to the "000" call. The respondent's submissions 1. The respondent submits that there was no material breach of procedural fairness. In effect, the respondent maintains that there is nothing that the appellant could have said or done at the hearing that could or would have altered the result. 2. Primarily, the respondent submits that the particular witness could not have been cross-examined to reveal the identity of the caller. This is for two reasons: first, this could not be in the witness's knowledge; and secondly, the appellant ought not be able to cross-examine to release personal information of another person. Further, there was no realistic possibility he could be cross-examined to reveal additional documents; or on anything else that could affect the result. Accordingly, there could be no benefit to cross examination. Further, the respondent submits that the personal information remains personal information even if the appellant knows the details. The respondent submits that the appellant's submission could not have made a difference. 3. Regarding the issue of whether the Tribunal erred in failing to consider s 73(2) of the GIPA Act with respect to the call recording, the respondent submits that this is not a mandatory factor and leave should not be given to raise it. Further, s 73(2) could not affect the question of whether there was a material error. Whilst an agency may impose conditions as to how a right of access may be exercised, such as by prohibiting the making of a copy of records to which access is granted, that discretion is not reviewable by the Tribunal in this case for the following reasons: 1. First, no conditions to access of the actual call recording could alter the balance. Once the appellant has been given access to listen to the call (even if a copy is not provided to him to keep) the personal information will have been revealed, not simply by his hearing of the names spoken but also by tone of voice, idiom, and other identifying traits. To be effective, it would be necessary to disguise the voice of the caller and redact the name of the caller and the other persons (and the respondent submits even this may not be sufficient). This would require the bringing into existence of a new record of the information. Such a record does not exist. 2. Second, the respondent submits that the Tribunal may not review any decision of the respondent not to bring a new record into existence. Such a decision is, so it is submitted, not reviewable. Even though an agency has discretion to bring into existence a new record, under s 75 of the GIPA Act, the respondent maintains that the exercise of this discretion is entirely beyond the review of the Tribunal. The respondent highlights that a decision under s 75 is not one of the enumerated reviewable decisions under s 80 of the GIPA Act. The respondent also points to some decisions of the Tribunal where s 75 has been considered beyond the remit of the Tribunal. 1. The respondent also submits that no further access could be granted to the incident report, without revealing personal information, as it was already provided in a redacted form. Question of law or leave to appeal 1. The Appeal Panel recently considered the principles in Imbree v Chief Commissioner of State Revenue [2024] NSWCATAP 158 (Imbree) at [24]–[26]: "[24] An appeal may be brought, under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW), on a question of law, or with leave of the Appeal Panel, on any other grounds. The question of law must be a pure question of law and must be articulated with precision, as it is the subject matter of the appeal: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22]. It should be possible to discern the question of law from the notice of appeal: Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [71]. These authorities were recently applied by the Appeal Panel in Gennacker Pty Ltd t/as Homestead Holiday Park v Hohnberg [2024] NSWCATAP 96 at [11]. The Court of Appeal of NSW in Medical Council of New South Wales v Mooney [2024] NSWCA 180 at [96]–[97] recently reiterated the importance of identifying the question of law. [25] The Criminal Court of Appeal in Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [48] and [109], identified that the pure question of law must be discernible on the face of the ground and not depend upon disputed facts: '[48] As was noted in Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334; [1999] HCA 9 at [52], some questions of law can be decided without any reference to the facts, or may proceed by reference to assumed facts. These are sometimes described as 'pure questions of law'. This was the terminology used, for example, by Leeming and White JJA in strictly confining a grant of leave to appeal in Wilson v Chan & Naylor Parramatta Pty Ltd as trustee for Chan & Naylor Parramatta Trust [2020] NSWCA 62 at [11]; see also Medical Council of New South Wales v Lee [2017] NSWCA 282 at [77]; and Violi v Commonwealth Bank of Australia [2015] NSWCA 152 at [66] and [125]. … [109] Those questions of law should be, in our opinion, what are sometimes described as 'pure questions of law'. They should not draw the Court of Criminal Appeal into questions of fact. Moreover, they must be questions whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question.' [26] The relevant principles were recently stated by Chen J in Liu v Director of Public Prosecutions (NSW) [2024] NSWSC 382 at [87]–[90]. Of particular relevance to this case is what his Honour said at [89]–[90]: '[89] As to this last matter, what amounts to a question of law alone is as stated by Gibbs CJ in Williams v R (1986) 161 CLR 278, 287: … there is "a question of law alone" if the question of law can be stated and considered separately from the facts with which it may be connected in a given case.' [90] The question of law alone is not, however, an abstract or hypothetical question. Rather, the appeal is against the conviction 'on a ground that involves a question of law alone'. That requires that the answer to the question of law, and the consequential questions that follow from its resolution, be material to the outcome 'in the sense that it could have affected the outcome': Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [41] ; Styles v Rowley [2023] NSWSC 1053 at [50]–[51] ; R v GAT [2024] NSWCCA 32 at [90]. In that way, the appeal against the conviction 'involves' the question of law alone." 1. Further, in Imbree, the Appeal Panel (at [83]–[84]) summarised key principles in determining whether to grant leave to appeal: "[83] Several cases in the Tribunal have considered when the Appeal Panel might grant leave to extend to the merits. Some of these were collected in FVA v Commissioner of Police, NSW Police Force [2024] NSWCATAP 127 and included: Ros v Commissioner of Police [2020] NSWCATAP 70 at [20]–[23], Collins v Urban [2014] NSWCATAP 17 at [82]–[84], Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]. See too Abdul-Karim v Council of the New South Wales Bar Association [2005] NSWCA 93 at [33]–[34]. [84] In order to obtain leave, the appellant must identify some point of principle or question of public importance, or an unorthodox approach to the fact finding, a finding that was unreasonably arrived at, or a clear injustice." 1. The Appeal Panel further considered the principles concerning a question of law in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25]–[40]. 2. The issues, here, concerning s 73(2) and s 74 of the GIPA Act turn on statutory construction and raise the question of whether the Tribunal misconstrued the GIPA Act in failing to consider them. However, it is not suggested that s 73(2) and s 74 must be considered in every case and therefore, the circumstances matter. Here, the facts and circumstances relevant to any question of conditions to access have not yet been found. The question of whether deletions might have made a difference depends too on the circumstances. This means that we are dealing with mixed questions of fact and law. Leave to appeal is required. 3. Despite the question touching on the construction of the GIPA Act, which we accept raises a point of principle, this is not an appropriate case to grant leave to appeal. The facts and circumstances have not been found and the range of conditions that might be employed and their effectiveness have not been the subject of evidence. There is no basis upon which the Appeal Panel could be satisfied of the requisite factors. The Appeal Panel cannot be satisfied that there was a clear injustice by reason of the Tribunal not considering s 73(2) or s 74 of the GIPA Act. 4. Leave to appeal with respect to s 73(2) and s 74 is refused. 5. This, however, does not mean that s 73(2), s 74 and even s 75 have become irrelevant to this appeal. To the extent that they are relevant to the question of whether there was a material breach of procedural fairness, in the sense that the result "could" have been different, they are considered below. Consideration Potential cross-examination 1. As mentioned above, the Tribunal at first-instance gave weight to the fact that some of the information was personal information of persons other than the appellant and further, the Tribunal accepted that revealing information from a "000" call might prejudice the agency's supply of confidential information. The weight to be given to each of these factors might be affected if the appellant's submissions prove true. The highest it could be put, however, is that had the appellant been present at the first-instance hearing, he might have cross-examined the witness (assuming he was in a position to know the answers) about the matters he suggests; including as to the "000" systems to confirm (or not) his submission that a "000" call cannot emanate from outside Australia. Further, his own evidence might have established that, at the time of the "000" call, the alleged caller was outside Australia. 2. The submissions, however, are not supported by evidence and are tenuous at best. Conditions on access 1. The respondent maintains that to provide a transcript or for any conditions to be effective, a new record must be created; and s 75 precludes the Tribunal (or anyone) from requiring the respondent to create a new record. The respondent maintains that an agency may be not required to bring a new record into existence and therefore, any decision under s 75 is not reviewable by the Tribunal. 2. For the reasons that follow, this submission is not accepted, at least insofar as the creation of transcripts is concerned. 3. The Tribunal may review a decision of an agency where jurisdiction to do so is conferred by enabling legislation: ADR Act, s 9. Here, the enabling legislation is the GIPA Act which provides that a person aggrieved by a reviewable decision may apply to the Tribunal for an administrative review under the ADR Act of the decision: GIPA Act, s 100. 4. As extracted above, s 80 of the GIPA Act provides that a reviewable decision includes, relevantly: a decision to provide access or to refuse to provide access to information in response to an access application (s 80(d)); and 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). Further, the "Note" to s 72 of the GIPA Act confirms that decisions about how to provide access are reviewable. 5. Here the reviewable decisions the subject of the application include: 1. the refusal to provide access to the government information contained in the audio file referred to as the call recording; and 2. the decision not to provide access in the way sought by the applicant by refusing him access to the audio file known as the call recording. 1. The Tribunal has jurisdiction to review these decisions. 2. Further, an agency may respond to an access application by providing a written transcript of the information recorded in an audio record: GIPA Act, s 72(1)(d). 3. This too is within the Tribunal's jurisdiction to review. 4. The Tribunal must decide what is the correct and preferrable decision in relation to these reviewable decisions: ADR Act, s 63(1). The Tribunal may affirm, vary, set aside and make a decision in substitution, or set aside and remit the decisions to be reconsidered in accordance with any directions or recommendations of the Tribunal: ADR Act, s 63(3). 5. In determining the correct and preferable decision, the Tribunal may exercise all of the functions that are conferred or imposed on the administrator who made the decision, by any relevant legislation (here the GIPA Act): ADR Act, s 63(2). 6. Assuming (without deciding) that s 75(1) refers to a function of an agency conferred or imposed by the GIPA Act, the respondent's submission is to the effect: despite s 63(2) of the ADR Act, the Tribunal nevertheless, does not stand in the shoes of the administrator insofar as exercising the function in s 75(1) is concerned; that is, the creation of new records. 7. The GIPA Act is to be interpreted and applied to facilitate its object and discretions are to be exercised "to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information". The object (in s 3 of the GIPA Act) encompasses encouraging "proactive" public release of government information and restricting access to government information "only" where there is an overriding public interest against disclosure. One of the objects of the ADR Act is to "promote and effect compliance" by administrators of legislation enacted for the benefit of citizens of NSW: ADR Act, s 3(d). 8. The GIPA Act concerns access to "government information". This means information contained in government records: GIPA Act, s 4. The expression "records" is defined in cl 10 of Sch 4 of the GIPA Act to include a document or other "source of information" and includes a copy of an existing record. 9. The GIPA Act is about providing access to government information and is not about providing access to government records. For this reason, an important question for any agency faced with an access application is whether and how to provide an applicant with access to the information held in government records. The questions are not whether and how to provide access to the records held by the agency. 10. Section 75 of the GIPA Act is concerned with the creation of new records. A new record means a new source of information. Section 75, in effect, provides that the respondent is not precluded from bringing a new source of information into existence; but cannot be required to do so. 11. No doubt in pursuance of the object of the GIPA Act, agencies routinely, create electronic versions of hard copy documents or create transcripts of audio files and redact parts when appropriate. On the respondent's view, these are new records. Further, the respondent maintains that in arriving at the correct and preferable decision, the Tribunal may not look at the possibility of creating such a new record; even though, it is to be recalled that the GIPA Act is concerned with providing access to information contained in government records. The object is to provide access to information. 12. Taken to its logical conclusion, acceptance of the respondent's submission would mean that wherever it might be preferable (and even easy) to create a new record, to facilitate access to government information, the Tribunal would have no power of review. This may limit the effective review of some, otherwise, reviewable decisions under s 80 of the GIPA Act. 13. For the reasons that follow, we have not found it necessary to decide the broader issue of whether s 75 prohibits the Tribunal from considering whether the correct and preferable decision might involve the creation of new records, other than transcripts. We limit our consideration of s 75, to its application in relation to the creation of a transcript of an audio file. 14. We pause to note however, the Tribunal has considered s 75 of the GIPA Act before with mixed results. Cases in the Tribunal concerning s 75 of the GIPA Act 1. Whilst it was not necessary to decide the issue, it was noted in FHG v Cumberland City Council; Cumberland City Council v FHG [2023] NSWCATAP 91 (Cumberland) at [100]–[102], by a partially differently constituted Appeal Panel as follows: "[100] Our conclusions regarding FHG's third ground of appeal, as set out above, have the consequence that it is not necessary that we consider the question whether the Tribunal has jurisdiction, on an application for review of a decision not to disclose information, to direct the agency holding the information to create a new record. [101] As we have noted above, Mr McFadzean did not argue that the Tribunal did not have the power to direct the Council to create a typewritten version of document 6. However, there are at least two first instance decisions of the Tribunal which explicitly hold that the Tribunal does not have jurisdiction to direct an agency to exercise its discretion pursuant to s 75 of the GIPA Act to create a new record of information. See: Bellamy v Transport for NSW [2019] NSWCATAD 54 (sub-paragraphs (18) and (19) under the heading 'Applicable Legislation'); and Mino v Legal Aid NSW [2015] NSWCATAD 245 at [35]. [102] There are also statements in other first instance decisions of the Tribunal which appear to proceed on the assumption that the Tribunal does have jurisdiction to require an agency to create a new record pursuant to s 75(1) to give effect to the decision of the Tribunal in the re-exercise of its discretion. See: Marden v Pharmacy Council of New South Wales [2017] NSWCATAD 34 at [116] – [120]; O'Grady v Sutherland Shire Council [2020] NSWCATAD 50 at [48] – [54]; Walker v Northern Beaches Council [2021] NSWCATAD 251 at [116] – [118]; and Evans v Chief Commissioner of State Revenue [2022] NSWCATAD 307 at [62] – [68]." 1. The cases that might support the respondent's proposition include Walker v Northern Beaches Council [2021] NSWCATAD 251, where at [118], the Tribunal considered that the decision not to create a list of documents was not within the scope of the decision under review, although it appeared to assume, in paragraphs [116]–[117] that the Tribunal did have the power to review a decision not to create a new document. In Bellamy v Transport for NSW [2019] NSWCATAD 54 at [19] and Mino v Legal Aid NSW [2015] NSWCATAD 245 at [35], the Tribunal, at first instance, expressly concluded (albeit with minimal reasoning) that the Tribunal lacks the power or jurisdiction to order the administrator to create a new document. 2. On the other hand, in O'Grady v Sutherland Shire Council [2020] NSWCATAD 50 at [54], the decision not to create a new record was upheld, but it does not appear to have been considered outside the scope of the Tribunal's review. In Evans v Chief Commissioner of State Revenue [2022] NSWCATAD 307 at [68], the decision not to create a new record was treated as if it was within the powers of the Tribunal to consider, but the decision was not disturbed. In Marden v Pharmacy Council of New South Wales [2017] NSWCATAD 34 (at [120]) again it appears to have been considered that the discretion under s 75 was reviewable, although again the decision was not disturbed. 3. The concepts of good administration and the need for the Tribunal to act consistently in decision making was considered recently in Australian Postal Corporation v Williams [2024] NSWCATAP 168 at [29]–[30]. We do not consider that s 75 has been the subject of comprehensive submissions or analysis in earlier decisions of the Tribunal and were it necessary to decide this point, we would not have felt constrained by earlier consideration. Application of s 75 in the circumstances Transcript 1. The Appeal Panel accepts that there is, as yet, no transcript of the call recording. However, s 72(1)(d) of the GIPA Act expressly identifies that an agency may provide access to a written transcript of the information recorded in an audio record. 2. Contrary to the respondent's submission that when read with s 75, a decision under s 72(1)(d) is only reviewable insofar as it applies to transcripts already in existence, the Appeal Panel considers that s 75 must be read subject to s 72 of the GIPA Act. 3. Where there is a conflict between a general and specific provision within an Act, the specific prevails: see discussion in Dennis Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019) at [4.51] and authorities referred to therein including: Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation (1948) 77 CLR 1 at 29; [1948] HCA 24; and Refrigerated Express Lines (A'Asia) Pty Ltd v Australian Meat and Live-stock Corporation [1980] FCA 45; 29 ALR 333 at 347. 4. Here, s 72(1)(d) of the GIPA Act expressly countenances the provision of a transcript. Section 72(2) requires an agency to provide access to information in the way requested by the applicant (subject to some exceptions). Assuming that the creation of a transcript of an audio-file amounts to the creation of a new record, as comprehended by s 75 (a matter which we do not need to decide), then s 75(2) would appear to be in conflict with s 72(1)(d) and (2). Having regard to the object of the GIPA Act and that the GIPA Act is concerned with the provision of the information held in the record and not the provision of the record itself, the Appeal Panel is satisfied that, in such circumstances, s 72(1)(d) and 72(2) of the GIPA Act would prevail. The case for the creation of a transcript is even clearer when one considers that s 72(1)(d) also applies to transcripts of records held by government agencies in shorthand or another encoded format. The provision of a transcript facilitates the provision of the information in an accessible manner. 5. This means that it is open to the Tribunal to conclude, in an appropriate case, that the correct and preferable decision is for an agency to create a transcript and provide an applicant access to it (with or without deletions). To the extent necessary, personal information may be deleted in accordance with s 74 of the GIPA Act. 6. Whether that is the correct and preferable decision in this case, is a matter for determination on remittal to the Tribunal. Audio recording 1. The Appeal Panel is satisfied that an audio record that has the names of the caller and other persons deleted from it, has not yet been prepared. Nevertheless, this does not mean that a new record, as opposed to a copy of an existing record, must be created. The details of each of the other persons' personal details such as name, address and phone number may be deleted from an existing record. This is anticipated by s 74 of the GIPA Act and is not impacted by s 75 of the GIPA Act. 2. The respondent submits that this would not go far enough to expunge all the personal information, as the caller could still be identified by voice. To avoid this, the respondent says a new recording would have to be brought into existence with the voice disguised. Even then, so it is submitted, this might not suffice as the caller might use language in such a way as to reveal their identity. 3. The Appeal Panel cannot be satisfied of this. First, we have not heard the audio file. Second, the Tribunal in the Substantive Decision did not make a finding that the audio file could identify the caller by voice, but accepted the evidence of Matthew Smith (who determined the application for internal review) that its release would reveal "identifying details" of the caller: Substantive Decision at [64] and [141]. 4. The Appeal Panel is satisfied that it may be possible to disguise or delete the personal details from the call recording without creating a new record. 5. It is, therefore, not beyond the realm of reasonable possibility that deletions and conditions of access could ensure protection of some or all of the personal information. For example, if the appellant was provided access to a redacted version of the call recording, at the agency and on condition that no recording of it be made. 6. This is a matter for evidence and submissions on remittal. The balancing exercise 1. If the risk of revealing some or all of the personal information ceases to be an issue, the balancing exercise of whether there is an overriding public interest in disclosure, must be reconsidered. 2. Had the hearing taken place with the appellant present, the result could have been different. There has been a material breach of procedural fairness. 3. In reaching this conclusion, we have not found it necessary to determine whether, in cases other than with respect to the provision of transcripts of audio recordings or information held in an encoded format, the decision not to bring a new record into existence for the purposes of answering the access request is beyond the remit of the Tribunal when exercising the jurisdiction of the Tribunal in reviewing a reviewable decision of an agency. Determination 1. This is a matter that should be remitted to the Tribunal to hear from the parties as to whether any access conditions to the call recording with deletions, or the bringing into existence of a transcript with deletions, might affect the balance. 2. As the appellant was not heard at first-instance, we do not consider it appropriate to shut the appellant out from cross examination of the respondent's witnesses. 3. As the appellant has alleged that the Tribunal at first-instance misled him, it is appropriate that this matter be remitted to a differently constituted Tribunal. Orders 1. The Appeal Panel orders: 1. The appeal is allowed. 2. The matter is remitted to the Administrative and Equal Opportunity Division of the Tribunal, differently constituted, to be reheard. ********** 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: 23 October 2024