NCAT Act 2013 Section 64, (1)
* What is it? * What are the implications? * Why is it part of the Act? * Are agencies using it?
"Whilst the Tribunal (NCAT) has power to make an order under S64(1)(d) of the NCAT Act which would have the effect of denying a party procedural fairness, 'the fundamental principles of open justice and procedural fairness should not readily be displaced.'" Bettington v Commissioner of Police (2021) NSWCATAP 110, (41).
NCAT Deputy President Hennessy & SM Walker
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The NCAT Act 2013 Section 64(1) overal is a powerful collection of sub-clauses that covers a public interest consideration against disclosure of any information privy to the NCAT.
It is founded on a claim there is a risk to the public and / or certain members of the public, but most particularly to NSW government agency personnel, if the information of interest is released to an applicant or is made public in any way.
It is a clause that has serious implications for any party to proceedings, but generally is directed at members of the public including an unrepresented person, or a media reporter.
It is a clause that is abused and misused by the NCAT with the utmost of inconsistencies, where one case blatantly contradicts another.
And it is indisputably a clause of the legislation that has been repeatedly and completely abused by agency personnel in order to obstruct open reporting and reference of cases, and in particular it is very effective in protecting the identity of NSW government agency personnel, where they use public monies for personal agenda.
Agency personnel NEVER pay their own legal fees!
An Order under Section 64(1) must be sought through Application to the NCAT.
However, there are numerous accounts of Agency legal representatives simply requesting this Order verbally during a Hearing and the Tribunal promptly granting it.
An example of this kind of abuse of the legislation and procedural fairness was when, in September 2022, the Principal Solicitor of the Office of the NSW Crown Solicitor (CSO) sought and secured an Order under the NCAT Act 2013 Section 64(1) to effectivelly prevent the publication or sharing of the evidence given by a Senior Privacy Officer of the government insurer iCARE. The proceedings concerned a request for government information, and the Applicant Telina Webb of NSW Freedom of Information had highlighted numerous improprieties on the part of the iCARE Privacy Officer, which Ms Webb articulated in her documentation.
It is noted there was nothing of a confidential nature within the iCARE Officer's Affidavit.
However, after claiming the iCARE Officer was indeterminably unavailable and therefore not available for cross-examination of the Affidavit, for reasons undisclosed to either the NCAT or Ms Webb as party to the proceedings, the CSO subsequently printed off various information from this very website which identified agency personnel misconduct, included it in HER (the CSO's) submissions and not the submissions of iCARE, and managed to convince the NCAT that such an Order was completely necessary for the "protection" of the iCARE officer.
The NCAT did not make any inquiries of the Administrator of this Site, Telina Webb, who was the Applicant in the subject proceedings. Neither was Ms Webb afforded the opportunity to make proper submissions, and the Order was issued immediately.
There is no evidence the iCARE Privacy Officer requested or sought the gag order. As such, on the surface it appears to be purely initiated and desired by the CSO.
There can be no disputing this type of conduct by the CSO, a very experienced and resource-flushed NSW government agency, was deliberately orchestrated to take advantage of Ms Webb, who was unrepresented.
There are many other instances and examples of saboteur-like behaviour by NSW legal representatives, including the CSO, who work with NSW government agencies to effectively gag the public, and insulate NSW agency personnel and their documented misconduct.
It must be pointed out that the NSW CSO ONLY ACTS IN THE INTERESTS OF NSW GOVERNMENT AGENCIES.
The abuse of the NCAT Act 2013 Section 64(1) permeates right through the NCAT, not contained just within the Freedom of Information arena, but through the State's Guardianship "enterprise" on a scale that is incomprehensible. The NSW Trustee and Guardian, TAG, uses this section of the legislation to silence the public, gag concerned family members of TAG clients, preventing the full and proper scrutiny of TAG records.
As such, regardless of whether or not Agencies are making wrong decisions, the CSO's job is to defend those decisions, no matter the impact of the outcomes, or the denegrating and debilitating affect they have on the greater community.
Such cases will be published and referred to in due course.
It is a long arduous road to appeal such orders, with NSW agency legal representatives trawling the internet, falsifying evidence, and unlawfully sharing the public's personal information between cases, for damning records to undermine legislative and administrative processes.
This Site has highlighted the Agency Port Stephens Council as an example of falsifying evidence and securing Section 64(1) Orders as a result.
It is disgraceful the NCAT makes it so easy for agencies to hide in the shadows, make untested claims, denying procedural fairness to the public, and preventing the accurate reporting of caselaw.
It is even more disgraceful the NCAT does not take any instance of documented agency misconduct into consideration within proceedings, nor does it make any referrals to bodies of oversight facilitated by the legislation.
Clearly, the NCAT is not concerned about agency misconduct.
However, the NCAT makes clear an unrepresented applicant in particular, should be very fearful of it, and that it has no hesitation in bringing down the full measure of the law and weight of judicial power, at any given moment, particulary concerning gag orders afforded to NSW government agencies under the NCAT Act 2013 Section 64(1).