Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Shoebridge v Office of Environment and Heritage [2017] NSWCATAD 275 Hearing dates: 29 May 2017 Date of orders: 13 September 2017 Decision date: 13 September 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: D Dinnen, Senior Member Decision: The reviewable decision is affirmed. Catchwords: ADMINISTRATIVE LAW – access to information – reviewable decisions – processing charges – estimate of processing charges – advance deposit – discount – special public interest – timing of decision – in the nature of preliminary decision – whether discount applied to advance deposit – deemed refusal Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Cases Cited: Adco Constructions Pty Ltd v Goudappel & Anor [2014] HCA 18; (2014) 308 ALR 213 Bridge Shipping Pty Ltd v Grand Shipping SA (1991) HCA 45, 173 CLR 231 Commissioner of Police v Danis [2017] NSWCATAP 7 Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55 Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56 Hardman v Director of Public Prosecutions (NSW) [2003] NSWCA 130 IW v City of Perth [1997] HCA 30; 191 CLR 1; (1997) 94 LGERA 224; (1997) 146 ALR 696; (1997) 71 ALJR 943 Minister Administering the Crown Lands ACT v Deerubbin Local Aboriginal Land Council (No 2) [2001] NSWCA 28 National Tertiary Education Union v Southern Cross University [2015] NSWCATAD 151 Page v Southern Cross University [2016] NSWCATAD 199 Public Service Assn v Premier's Department [2002] NSWADT 277 Shoebridge v Forestry Corporation of NSW [2016] NSWCATAD 93 Texts Cited: Guideline 2- Discounting processing charges, Information Privacy Commission, December 2016 Category: Principal judgment Parties: David Shoebridge (Applicant) Office of Environment and Heritage (Respondent) Information Commissioner (Intervenor) Representation: Solicitors: D Shoebridge (Applicant in person) Office of Environment and Heritage (Respondent) Information and Privacy Commission (Intervenor) File Number(s): 2016/00378406, 1610651 reasons for decision Background 1. On 9 September 2016 Mr David Shoebridge, MLC made an access application under the Government Information (Public Access) Act 2009 (GIPA Act) to the Office of Environment and Heritage for information as follows: 1. Any reports that have been produced out of the Office of Environment and Heritage's Aboriginal cultural heritage reform, including a summary of submissions received 2. All communications with Local Aboriginal Land Councils regarding transferring responsibilities of Aboriginal heritage decisions under the National Parks and Wildlife Act from the Office of Environment and Heritage to local Aboriginal land councils 1. For point 1 we are seeking information from January 2013 to date 2. For point 2 we are seeking information from 1 July 2015 to date 3. The Applicant also identified in the access application that he wished to apply for a discount in processing charge based upon a special benefit to the public: The Aboriginal cultural heritage reform process commenced in 2013, with broad public interest about the future management of Aboriginal cultural heritage in NSW. It is in the interest of open and transparent government to publically release any reports that have been produced from this reform process. 1. On 14 September 2016 the Respondent notified the applicant that: 1. His access application of 9 September 2016 was valid; 2. The estimated cost of dealing with the application was $570; 3. An advance deposit of $285 was required, calculated at 50% of the estimated total processing charges; 4. "A decision in respect of your request for a 50% discount on the basis of the public benefit is unable to be made, as no records have as yet been identified. In order to be satisfied that the information applied for is of special benefit to the public generally, I need to examine the relevant records. Once a decision about access is ready to be made, your comments about the public interest in the information you have requested access to, and your request for a 50% discount, will be considered." 1. On 12 October 2016 the Applicant sought review of the Respondent's decision "not to grant the special interest discount on the information applied for and to require the advance deposit in the sum of $285". 2. The Applicant and Respondent's submissions identify issues giving rise to these proceedings which, for the purposes of these submissions, are summarised as: 1. The reviewable decision/s invoking the Tribunal's jurisdiction; 2. The process to be applied by an agency in determining an application for a reduction in processing charges under the GIPA Act; 3. The time at which a decision regarding a reduction in processing charges can be made by an agency. 1. The IPC exercised its right to appear and be heard in the review proceedings before the Tribunal pursuant to section 104(1) of the GIPA Act. Tribunal's jurisdiction and powers 1. The Tribunal's jurisdiction to conduct this review derives from s100 of the GIPA Act read with s28 of the Civil and Administrative Tribunal Act 2013 (NSW) and s9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act). 2. In determining the application, the Tribunal is to decide what the correct and preferable decision is having regard to the material before it: ADR Act, s63(1). The Respondent bears the onus of satisfying the Tribunal that the decision it has made is the correct and preferable decision: GIPA Act, s105(1). The Respondent is not limited to defending the matter on the same basis as it made its original decision: Public Service Assn v Premier's Department [2002] NSWADT 277 at [57] and [59]. 3. In determining the application, the Tribunal may affirm the decision, vary the decision, set aside the decision and make another decision in substitution for the decision set aside, or set aside the decision and remit the matter for reconsideration by the Respondent in accordance with any directions or recommendations of the Tribunal: ADR Act, s63(3). The GIPA Act 1. Section 3(1) 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. 1. Section 3(2)(a) of the GIPA Act requires that the Act be interpreted and applied so as to further that object. 2. Section 80 of the GIPA Act provides which decisions are reviewable decisions. Relevant in this matter are: 1. section 80(j) a decision to impose a processing charge or to require an advance deposit, and 2. section 80(k) a decision to refuse a reduction in a processing charge. 1. Section 66(1) of the GIPA Act provides that an applicant is entitled to a 50% reduction in a processing charge imposed by an agency if the agency is satisfied that the information applied for is of special benefit to the public generally. 2. In December 2016 the IPC reissued "Guideline 2- Discounting processing charges" (the Guideline) pursuant to section 66(3) of the GIPA Act, to assist agencies regarding reductions in processing charges under section 66. The Guideline also references sections 65 and 127 of the GIPA Act. The Tribunal, in Shoebridge v Forestry Corporation of NSW [2016] NSWCATAD 93, observed that "…guidelines are helpful aides" in examining the application of 'special benefit to the public generally': 1. Paragraph 3.11 of the Guideline provides that "… advice to an applicant on estimated processing charges is not a decision to impose processing charges, merely an indication of what the charges are likely to be." This approach is consistent with paragraphs 3.14 and 3.15 of the Guideline which advises agencies to keep a record of estimates for processing charges and advise the applicant about the likely costs before the costs are incurred. 2. Paragraph 3.15 in particular recognises that this approach facilitates action by an applicant to reduce the scope or withdraw the application if the agency is unable to waive or discount the application fee or charges. 3. Paragraph 4.3 of the Guideline provides encouragement for agencies to exercise the discretion to waive, reduce or refund the application fee and/or processing charges whenever appropriate, to further the object of the GIPA Act. 4. Paragraph 5 the Guideline recognises that the 'special benefit' or 'special interest to the public' may not be obvious to a decision-maker on the face of the access application and in these circumstances applicants can also assist the decision-maker in their consideration of a request for a discount in processing charges. 5. Part 3 of the Guideline examines what is 'special benefit to the public generally' and provides at Part 4 examples of circumstances that may meet the statutory threshold of 'special benefit to the public generally'. Statutory construction 1. In Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56 Kirby J (in dissent as to the result) referred at [96] to five principles of statutory interpretation, three of which are relevant to the dispute in the present case (footnotes omitted): (1)The textual analysis principle: The correct starting point for any analysis of a problem of statutory interpretation is the language of the statute itself. It is not a mass of past judicial authority dealing with the same or similar statutory provisions. If there has been one principle of statutory interpretation upon which this Court has spoken with general unanimity in recent years, it has been the obligation to begin the ascertainment of the applicable law by analysing the text in issue. Any other approach fails to accord proper attention to the authentic voice in which the lawmaker has expressed the governing rule. ...; (2)The contextual interpretation principle: The reading of contested statutory language must take place in the context of the entire section in question, the surrounding part of the Act and other relevant provisions of the statute, read as a whole. This principle recognises the risks that can arise in giving meaning to particular words viewed in isolation from the context in which those words appear. Necessarily, words take their colour from their context. ... (3) The purposive construction principle: The Court must also give effect to the ascertained purpose of the legislature when it enacted the contested law. Statutory provisions and common law rules in this Court, in other courts of high authority and in State courts repeatedly lay emphasis on the need to go beyond a purely semantic approach to the discovery of statutory meaning. The reasons for these developments in the approach to statutory interpretation are many and varied. I will not repeat them here. They are well known. The challenge is to ensure that they are observed consistently and to avoid temptations to revert to discarded techniques. Those techniques include purely grammatical approaches to interpretive questions or approaches that give undue attention to considerations of decisional history. 1. In Hardman v Director of Public Prosecutions (NSW) [2003] NSWCA 130, a case involving the interpretation of penal provisions in a criminal statute, McColl JA (Tobias JA agreeing) said (footnotes omitted): Principles of statutory construction 64 The principles of statutory construction which govern this case are well established. 65 They were expressed with typical clarity in Project Blue Sky Inc & Ors v Australian Broadcasting Authority[1998] HCA 28; (1998) 194 CLR 355 at 381, 384 per McHugh, Gummow, Kirby and Hayne JJ in the following terms: "[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed... … [78] The duty of the court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. 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." 66 The Court will also have regard to extrinsic materials, including the "legislative history and antecedent circumstances", although resort to that history "all too rarely illuminates the meaning of the current provision." 67 Thus the courts avoid a literal approach to construction as Mason J (as he then was) made clear in K & S Lake City Freighters Pty Limited v Gordon & Gotch Limited [1985] HCA 48; (1985) 157 CLR 309 at 315 when he observed that: "Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasise the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise ... the instances of general words in a statute being so held to be constrained by their context are legion." 68 The primary object of statutory construction, therefore, is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute. Further, a legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. 69 In undertaking the exercise of construing legislation in its context to determine the legislative meaning, it is necessary to look at the compound expression rather than its disintegrated parts. 70 If the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. However if two constructions are open the court will prefer that which will avoid what it considers to be inconvenience or injustice. 71 Mere inconvenience of result in itself, however, is not a ground for departing from the natural and ordinary sense of the language read in its context. But there are cases in which inconvenience or improbability of result assists the court in concluding that an alternative construction which is reasonably open is to be preferred to the literal meaning because the alternative interpretation more closely conforms to the legislative intent discernible from other provisions in the statute. 1. In Shoebridge v Forestry Corporation of NSW [2016] NSWCATAD 93 at [22] the Tribunal referred to the rules of statutory construction in Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55 at [39] in determining the application of s66(1)of the GIPA Act: This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text"[59]. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself. 1. In interpreting the statutory provisions, it is relevant to consider that the GIPA Act is beneficial legislation and therefore ought to be interpreted beneficially i.e. with a wide and liberal statutory interpretation. It is proper to give it the widest interpretation which its language will permit: Bridge Shipping Pty Ltd v Grand Shipping SA (1991) HCA 45, 173 CLR 231 per McHugh J at paragraph [21]. However, "a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural": IW v City of Perth [1997] HCA 30; 191 CLR 1; (1997) 94 LGERA 224; (1997) 146 ALR 696; (1997) 71 ALJR 943 (31 July 1997) per Brennan CJ and McHugh J. Exceptions to the rights provided by the legislation should be narrowly construed: Minister Administering the Crown Lands ACT v Deerubbin Local Aboriginal Land Council (No 2) [2001] NSWCA 28 at paragraph [53]; and not every provision or amendment to a provision has a beneficial purpose or is to be construed beneficially. The purpose of the provision must be identified: Adco Constructions Pty Ltd v Goudappel & Anor [2014] HCA 18; (2014) 308 ALR 213 at paragraph [29]. Consideration 1. There is a dispute as to which reviewable decision/s is/are before the Tribunal for determination. The Respondent submitted that the only reviewable decision made was its decision to require an advance deposit (section 80(j)), and that no decision had been made in relation to refusing a reduction in a processing charge (section 80(k)). The Applicant submitted that there are two reviewable decisions; requiring an advance deposit (section 80(j)) and refusing a reduction in fees (section 80(k)). In oral submissions before the Tribunal the Applicant also identified a third reviewable decision – a deemed refusal under section 63, reviewable under section 80(c). 2. The decision sent to the Applicant on 14 September 2016 included the following with respect to the Applicant's review rights: The decisions to impose a processing charge, refuse a reduction in a processing charge or to require an advance deposit are reviewable decisions under the GIPA Act. 1. By email dated 26 September 2016 the Respondent stated: The special public benefit is not to be determined on the scope of the information but on the information that has been produced. The Information Commissioner's Guideline 2 – Discount charges (http://www.ipc.nsw.gov.au/gipa-guideline-2-discounting-charges) state: The particular information the subject of the application, if released, should have special benefit or special interest to the public. The decision-maker needs to consider the content of the document and the context of its release. 1. The Respondent submitted that a decision in respect of whether or not to grant a discount on the grounds of special benefit to the public should be made by the decision-maker at the same time as making a decision about access, and that the decision is based on the actual information gathered and assessed. In support of these submissions the Respondent relied on National Tertiary Education Union v Southern Cross University [2015] NSWCATAD 151 ("NTEU") where Senior Member Lucy stated at [36]: 36 The GIPA Act contemplates that an applicant's entitlement to a discount of a processing charge is to be determined at the time access is granted, not at the time an advance deposit is required. Sections 65(1) and 66(1) of that Act provide for an applicant's entitlement to a reduction in a processing charge "imposed by an agency." Imposition of a processing charge may only occur when an application has been determined. 1. The Applicant supported the IPC submissions that a distinction may be drawn between the determination of an entitlement to a reduction in processing charges and the determinations contemplated by the Tribunal in NTEU, where the Tribunal in NTEU was required to decide whether a processing charge may be imposed prior to the determination of an access application, and did not appear to contemplate the operation of s 80(l) or s 66(2). The IPC relied on the decision in Commissioner of Police v Danis [2017] NSWCATAP 7 ("Danis") to the effect that decisions on fees, including any discounts applicable, are a "preliminary decision" and not a final decision by the agency pursuant to s58(1) of the GIPA Act, confirming the sequential approach to the decision-making process expressed in the Guideline. 2. Danis at [19] states, referring to the subsections of s58 of the GIPA Act: (Final decisions (b) to (f) are reviewable by the Tribunal, as are eight other types of decision that are in the nature of preliminary decisions (for example, disputes over, transfers to another agency, fees, deferrals of access and the like): s 80, GIPA Act.) 1. I consider that comment to have been made by the Appeal Panel in obiter. There are no other references to the characterisation or identification of "preliminary" decisions in comparison to final decisions in Danis and the paragraph itself is included in parentheses. I characterise the "eight other types of decision" as being in the nature of preliminary decisions or ancillary decisions, in the context of them being something other than final decisions in relation to an access application under section 58 of the GIPA Act. They do not conclude the matter, but may affect the manner in which information is provided or the manner in which the application is dealt with by an agency either before, during or after the access application is determined to finality. So much is indicated by the inclusion of s80(m) in those "eight other types of decision", which makes reviewable a decision under s26 to record the decision to provide access to information in a disclosure log. A decision to include information in a disclosure log must necessarily occur at the same time or after the decision to provide access to the information. 2. I agree with Senior Member Lucy's findings in NTEU at [30] to [33] that "a decision about processing charges is to be made at the time an agency decides to provide access to information and not before" and that therefore a proper statutory interpretation of s66(1) demonstrates that a decision to grant or refuse a discount on public interest grounds must occur at the same time or after a final decision is made in relation to the access application. This is confirmed to me by the words "a processing charge imposed by an agency" which indicates that the final calculation of processing costs involved in providing access has already been imposed following the decision to provide access to that specific information, in contrast to an estimated cost prior to the decision to provide access. 3. Accordingly, there has been no decision made which falls within the parameters of s80(k) of the GIPA Act as there have been no processing charges yet imposed by the agency. 4. The reviewable decision before the Tribunal is therefore the Respondent's decision to require an advance deposit under s68, reviewable pursuant to s80(j) of the GIPA Act. 5. Section 68 provides: 68 ADVANCE DEPOSIT FOR PAYMENT OF PROCESSING CHARGE (1) An agency may by notice to an applicant require the applicant to make an advance payment of a processing charge (as an "advance deposit" ). Note : The decision to require an advance deposit is reviewable under Part 5. (2) The period within which the application is required to be decided stops running from when the decision to require an advance deposit is made until payment of the advance deposit is received by the agency. (3) The notice requiring an advance deposit must: (a) include a statement of the processing charges for work already undertaken by the agency in dealing with the application, and (b) include a statement of the estimated processing charges for work expected to be required to be undertaken by the agency in dealing with the application, and (c) specify a date by which the advance deposit must be paid (being a date at least 20 working days after the date the notice is given), and (d) include a statement that if the advance deposit is not paid by the due date the agency may refuse to deal further with the application and that this will result in any application fee and advance deposit already paid being forfeited. (4) An agency can extend the date by which an advance deposit must be paid and is to give the applicant notice of any extension (indicating the new date by which the advance deposit must be paid). 1. The Applicant submitted: In this case it is both the character and the quantum of the advance deposit that is in issue. That is, we acknowledge the ability of an agency to impose an advance deposit set at 50% of the processing charge. What we are requiring is a determination that there is a special public benefit so that, if the agency maintains its demand for a $285 advance deposit, that deposit is the entirety, or likely to be the entirety, of the fee. 1. This is an erroneous approach. The GIPA Act specifically anticipates that an advance deposit based on an estimate of the processing charges may end up being more or less than 50% of the actual processing charges, as indicated by s69(2) allowing for a further advance deposit up to a maximum of 50%, and s71(1) providing for refunds of advance deposits where the actual processing charges end up being less than the estimated processing charges. 2. The advance deposit required by an agency under s68 of the GIPA Act does not get offset by the discount for a special public benefit under s66(1). First, this is because, as discussed above and in NTEU, the determination of a discount does not occur until the access application is determined and a processing charge is imposed. An estimate of that processing charge is not an imposition of the processing charge. As the requirement for an advance deposit precedes the imposition of the processing charge, it also precedes the granting of a discount under s66(1). Second, allowing that construction of the Act could result in circumstances where the Agency was no longer able to rely on sections 68 and 70 to refuse to deal further with an application. The purpose of s68 is to allow the agency to require an advance payment in order for it to continue processing an application. If a discount of 50% was applied at the time the advance deposit of up to 50% was required, the agency would lose the ability to require any advance deposit. This conflicts with the principles of statutory interpretation discussed above, noting that whilst the GIPA Act is focussed on providing the public with access to information, the purpose of Division 5 of the GIPA Act is to allow an agency to require payment of processing charges for doing so. 3. This interpretation is consistent with the Tribunal's reasoning in NTEU and Page v Southern Cross University [2016] NSWCATAD 199. 4. At hearing, the Applicant submitted that there was a potential third reviewable decision, being a deemed refusal under s63, reviewable under section 80(c) of the GIPA Act. Section 63 provides for a deemed refusal of an access application if it is not determined within the required time. Section 57 provides that the required time is 20 working days after the agency's receipt of the application. However, the requirement by the Respondent for an advance deposit under s68 had the effect of suspending the decision timeframe until payment of the advance deposit was received, pursuant to s68(2) of the GIPA Act. The Respondent's notice of 14 September 2016 stated: The time between making this request and our receipt of your payment shall not be taken into account in calculating the days within we are required to decide your application. Please note that, under section 70 of the GIPA Act, we may refuse to deal further with your application if the advance deposit is not paid within the required time. If this occurs, any application fee and advance deposit already paid is forfeited. If you require additional time to pay, please contact me immediately. 1. There was no evidence filed by the Applicant that the advance deposit required by the Respondent's notice of 14 September 2016 had been paid. Instead, the Applicant commenced these proceedings for review of the Respondent's decision. In those circumstances, I find that the Respondent did not make a deemed refusal decision and there is no such reviewable decision before the Tribunal. 2. The correct and preferable decision is for the Tribunal to affirm the Respondent's decision of 14 September 2016. Orders 1. The reviewable decision is affirmed. ******** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 13 September 2017