The GIPA Act 2009, long-titled the Government Information (Public Access) Act, sets out the public’s legally enforceable rights to access NSW government information.
It is one of the Parliament’s freely gifted pieces of beneficial legislation. There is no benefit to the NSW government, all the benefit is directed towards the public of NSW.
It is one of the Parliament’s freely gifted pieces of beneficial legislation. There is no benefit to the NSW government, all the benefit is directed towards the public of NSW.
Mr Phil Walker; first victim of a Section 110 Order under the GIPA Act 2009
The Object of the GIPA Act is to ensure open, transparent, accountable and responsible democratic government.
The GIPA Act is neither penal or fiscal; being it is not punitive and has no part in the public’s financial obligations to the state or nation.
All this sounds very good and rather encouraging until we start dissecting the GIPA Act in the same manner as those NSW government employees tasked with administering it and ensuring the public of its rights.
In this instance, Section 110 of the GIPA Act 2009 demands a good dissecting and exploratory operation which is extremely overdue!
NCAT has a limited history with Section 110 of the GIPA Act 2009. Given the possible hundreds of thousands of access applications seeking government information since the Acts inception, and the possible hundreds of thousands of access applicants filing those requests, it might be surprising to learn that NCAT has only issued (5) five Section 110 orders, of which (1) one was appealed and overturned on bias, and (1) one was revoked. The purpose of Section 110 is to formally restrain those seeking access to government information from doing so, but making clear criteria must be met first with the Tribunal / NCAT being satisfied to that effect, before any discretion to grant the order will be exercised, specifically:(1) NCAT may order that a person is not permitted to make an access application without first obtaining the approval of NCAT (a restraint order) if NCAT is satisfied that—(a) at least 3 access applications (to one or more agencies) in the previous 2 years have been made that lack merit, and(b) the applications were made by the same person or by any other person acting in concert with the person.The Section makes it clear to agencies:• At least 3 access applications which lack merit, to one or more agencies, in the previous 2 years have been that lack merit, AND• That the applications so lacking in merit were made by the same person or by another person acting in concert with the person making the applications. Currently given the historical caselaw, NCAT has allowed a total number of claimed unmeritorious access applications across numerous agencies; meaning not all agencies presented (3) three such applications each, instead relying on a total across agencies to meet the criteria. This was the case in the following matters:• Dept of Education v Zonnevylle (2020) NSWCATAD 96• Palerang, Queanbeyan City & Goulburn Mulwaree Councils v Powell (2015) NSWCATAD 44 The remainder of cases which saw Section 110 Orders granted concerned a single agency Applicant.However, at no time has there been a case with multiple Respondents inclusive of those individuals accused of acting in concert with any other person. Section 110 (1) (b), concerning acting in concert, was added to the legislation in November 2018 further to a statutory review of the Act, and was suggested by a member of the public further to its reference in the Irish Freedom of Information Act. Not, that is not a joke. That person did not disclose her conflict of interest being she was a member of an organisation which benefits from NSW government business and is a member of an organisation which promotes NSW government interests in the GIPA Act.
Let’s be very clear: NSW government personnel tasked with administering this beneficial piece of legislation resent it. Copious evidence provided by NSW agencies confirm agencies work very hard to obstruct the public’s legal rights, in particular abusing the public interest considerations against disclosure of information. Such actions occur for the purpose of avoiding accountability and transparency.
NSW agencies have grown to love and embrace Section 110 because it can be used to denigrate the public’s endeavours to exercise legal rights. Indeed the current Director / Business Unit Manager Open Government Information & Privacy Unit of Dept of Communities & Justice, ex-NSW police superintendent Ms Jodie Cobbin, made a public presentation in March 2019 stating a Section 110 Order was in her view ‘a light at the end of the tunnel’ for dealing with what she claimed to be problematic GIPA Applicants. Basically if there are those members of the public identified as asking for too much information, particularly damning information that would expose corruption and maladministration in the NSW government, Section 110 Applications are evidenced to include trolling behaviours of agency personnel, where they will stop at absolutely nothing to find sufficient damning information and records such that woos the NCAT into granting the orders sought.
This was the case with Webb v Port Stephens Council; Webb v Port Stephens Council; Port Stephens Council v Webb (2020) NSWCATAD 81, where an NCAT Principal Member firstly suggested a Section 110 Application, then presiding over the case gobbling up every allegation by the agency Port Stephens Council and granting the orders sought, inclusive of the acting in concert component which was outside of the NCAT’s jurisdiction. This deplorable case was overturned on bias and was subsequently dismissed by remittal hearing in 2021.
All of this brings the history of the Section 110 to the present case of Mr Phil Walker, the very first Section 110 Order victim in the matter of Pittwater Council v Walker (2015) NSWCATAD 34, where one Council sought to restrain him because he was clearly asking for too much damning information.
As mentioned, Section 110 (1) (a) sets out the first criteria is to establish (3) three or more unmeritorious access applications to one or more agencies. This is easy enough to do when the claimed unmeritorious access applications do not currently require any proof; it’s a simple case of whatever the agency says is accepted, no test in sight. That’s also because NCAT has no rules of evidence. NCAT imposed a Section 110 Order against Mr Walker in perpetuity, meaning there is no end in sight. Even a convicted serious criminal offender has the right to apply for parole, but no such fairness and access to justice is present in NCAT. Since that decision in 2015 Mr Walker has been forced to take the NCAT pre-approval route for all future access applications with the particular NSW agency over a dozen times, all of which were successful. Successful meaning he could then commence his Access Application process with the agency. BUT, since those multiple successful approvals under Section 110, some clever little lawyer on the side of the agency pointed out the NCAT had been approving Mr Walker’s applications absent of Section 110 (5) which states notice of the forthcoming Access Application must be given to both the agency and the Information Commissioner BEFORE lodging the application with NCAT. Whoever thought this was a good idea or valid legal safety valve heaven only knows! And so it was that Mr Walker had yet another protocol gate to pass through before even getting to the NCAT for consideration for approval of access application. “It’s an absolute joke! I’ve had a dozen applications go through NCAT in the last decade without a hitch, and suddenly a Council solicitor decides he’s going to make things even harder for me. I have to utilise public transport. I reside in the Pittwater Shire, with the Council building not within walking distance. So I now have to use more of my time getting my application to the Council and the Information Commissioner (IPC) before I can lodge it with the NCAT. The IPC office is nowhere near the NCAT building. Making things more difficult if that were possible, I recently personally delivered an application to the IPC’s building concierge in my efforts to comply with the legislation only to be told they would not accept it. Would you believe it, a short time later I received notification from the IPC banning me from the building! Does the IPC actually have that power? Who owns the building? The whole place has gone mad!”, stated Mr Walker. “I wear my Section 110 as a badge of honour. I will not be ashamed of it, this is the direct result of our democratic government abusing its powers and an agency which refuses to properly open its files to the public. The GIPA Act is in place to make government open, transparent and accountable. What a load of rubbish, they do everything to bog people down in convoluted processes in the hope they will just give up. Well I’m not giving up! My recent NCAT decision of September this year is another example of the government and judiciary working together to shut the public down. They’re all fascists in my view! My GIPA Application would have been finished by now, they usually take about a month. But instead I have to go through a whole court case just to get past first base which has taken up almost five months for nothing; disgraceful.” Make no mistake; every application to first seek approval to lodge an access application under constraint of a Section 110 Order, is a case within a case.* Parties make an application. * Parties give notice. * Parties make submissions.* Parties file evidence.* Parties can make Affidavits* Parties can summons witnesses.* Parties sit at the bar table and make verbal submissions.* Parties can cross-examine affidavit deponents.
So far NCAT has not been able to quantify the cost to the public purse for the conducting of these punitive Section 110 Orders applications. And there is no information available about the costs for the NCAT to process the resultant access applications under Section 110 constraints. Neither is there any data on what they actually cost the victimised GIPA Access Applicant, with all thus far being self-represented. So is the Section 110 process through the NCAT for approval to lodge an access application value for public monies? Most definitely not when considering the singular case of Mr Peter Zonnevylle being subject to a Section 110 Order, today's decision recording his access application remaining within the NCAT forum for (4) four years without progressing independently to the agency! There can be no doubt this is the ultimate example of NCAT facilitating a case within a case, with no benefit to the public who was gifted his free beneficial legislation intended to secure the legal right to access NSW government information. It is extraordinary the NCAT finds all this acceptable with no hint of reprimand to any agency procrastinating the access to information process. Of course the agencies successful in securing Section 110 Orders find all this very acceptable! It’s a process designed by bureaucrats to dissuade the public, cause as much frustration and cost as possible, to teach the public the lesson of who’s in charge and running the GIPA Show. There is much work to be done in the arena of the GIPA Act 2009, particularly Section 110. A great deal of that work encompasses the workings of the NCAT itself. In August 2024 Telina Webb of NSW Freedom of Information filed a request for urgent parliamentary inquiry into the NCAT and the NCAT Act 2013, with a copy of that report provided to the NSW Attorney-General Michael Daley.
The report was also forwarded to the NCAT President and Judge Lea Armstrong for her comment. Ms Webb continues to press for that valid request for parliamentary inquiry which will be reported on this Site in due course. Webb's report to parliament is available here.
The GIPA Act is neither penal or fiscal; being it is not punitive and has no part in the public’s financial obligations to the state or nation.
All this sounds very good and rather encouraging until we start dissecting the GIPA Act in the same manner as those NSW government employees tasked with administering it and ensuring the public of its rights.
In this instance, Section 110 of the GIPA Act 2009 demands a good dissecting and exploratory operation which is extremely overdue!
NCAT has a limited history with Section 110 of the GIPA Act 2009. Given the possible hundreds of thousands of access applications seeking government information since the Acts inception, and the possible hundreds of thousands of access applicants filing those requests, it might be surprising to learn that NCAT has only issued (5) five Section 110 orders, of which (1) one was appealed and overturned on bias, and (1) one was revoked. The purpose of Section 110 is to formally restrain those seeking access to government information from doing so, but making clear criteria must be met first with the Tribunal / NCAT being satisfied to that effect, before any discretion to grant the order will be exercised, specifically:(1) NCAT may order that a person is not permitted to make an access application without first obtaining the approval of NCAT (a restraint order) if NCAT is satisfied that—(a) at least 3 access applications (to one or more agencies) in the previous 2 years have been made that lack merit, and(b) the applications were made by the same person or by any other person acting in concert with the person.The Section makes it clear to agencies:• At least 3 access applications which lack merit, to one or more agencies, in the previous 2 years have been that lack merit, AND• That the applications so lacking in merit were made by the same person or by another person acting in concert with the person making the applications. Currently given the historical caselaw, NCAT has allowed a total number of claimed unmeritorious access applications across numerous agencies; meaning not all agencies presented (3) three such applications each, instead relying on a total across agencies to meet the criteria. This was the case in the following matters:• Dept of Education v Zonnevylle (2020) NSWCATAD 96• Palerang, Queanbeyan City & Goulburn Mulwaree Councils v Powell (2015) NSWCATAD 44 The remainder of cases which saw Section 110 Orders granted concerned a single agency Applicant.However, at no time has there been a case with multiple Respondents inclusive of those individuals accused of acting in concert with any other person. Section 110 (1) (b), concerning acting in concert, was added to the legislation in November 2018 further to a statutory review of the Act, and was suggested by a member of the public further to its reference in the Irish Freedom of Information Act. Not, that is not a joke. That person did not disclose her conflict of interest being she was a member of an organisation which benefits from NSW government business and is a member of an organisation which promotes NSW government interests in the GIPA Act.
Let’s be very clear: NSW government personnel tasked with administering this beneficial piece of legislation resent it. Copious evidence provided by NSW agencies confirm agencies work very hard to obstruct the public’s legal rights, in particular abusing the public interest considerations against disclosure of information. Such actions occur for the purpose of avoiding accountability and transparency.
NSW agencies have grown to love and embrace Section 110 because it can be used to denigrate the public’s endeavours to exercise legal rights. Indeed the current Director / Business Unit Manager Open Government Information & Privacy Unit of Dept of Communities & Justice, ex-NSW police superintendent Ms Jodie Cobbin, made a public presentation in March 2019 stating a Section 110 Order was in her view ‘a light at the end of the tunnel’ for dealing with what she claimed to be problematic GIPA Applicants. Basically if there are those members of the public identified as asking for too much information, particularly damning information that would expose corruption and maladministration in the NSW government, Section 110 Applications are evidenced to include trolling behaviours of agency personnel, where they will stop at absolutely nothing to find sufficient damning information and records such that woos the NCAT into granting the orders sought.
This was the case with Webb v Port Stephens Council; Webb v Port Stephens Council; Port Stephens Council v Webb (2020) NSWCATAD 81, where an NCAT Principal Member firstly suggested a Section 110 Application, then presiding over the case gobbling up every allegation by the agency Port Stephens Council and granting the orders sought, inclusive of the acting in concert component which was outside of the NCAT’s jurisdiction. This deplorable case was overturned on bias and was subsequently dismissed by remittal hearing in 2021.
All of this brings the history of the Section 110 to the present case of Mr Phil Walker, the very first Section 110 Order victim in the matter of Pittwater Council v Walker (2015) NSWCATAD 34, where one Council sought to restrain him because he was clearly asking for too much damning information.
As mentioned, Section 110 (1) (a) sets out the first criteria is to establish (3) three or more unmeritorious access applications to one or more agencies. This is easy enough to do when the claimed unmeritorious access applications do not currently require any proof; it’s a simple case of whatever the agency says is accepted, no test in sight. That’s also because NCAT has no rules of evidence. NCAT imposed a Section 110 Order against Mr Walker in perpetuity, meaning there is no end in sight. Even a convicted serious criminal offender has the right to apply for parole, but no such fairness and access to justice is present in NCAT. Since that decision in 2015 Mr Walker has been forced to take the NCAT pre-approval route for all future access applications with the particular NSW agency over a dozen times, all of which were successful. Successful meaning he could then commence his Access Application process with the agency. BUT, since those multiple successful approvals under Section 110, some clever little lawyer on the side of the agency pointed out the NCAT had been approving Mr Walker’s applications absent of Section 110 (5) which states notice of the forthcoming Access Application must be given to both the agency and the Information Commissioner BEFORE lodging the application with NCAT. Whoever thought this was a good idea or valid legal safety valve heaven only knows! And so it was that Mr Walker had yet another protocol gate to pass through before even getting to the NCAT for consideration for approval of access application. “It’s an absolute joke! I’ve had a dozen applications go through NCAT in the last decade without a hitch, and suddenly a Council solicitor decides he’s going to make things even harder for me. I have to utilise public transport. I reside in the Pittwater Shire, with the Council building not within walking distance. So I now have to use more of my time getting my application to the Council and the Information Commissioner (IPC) before I can lodge it with the NCAT. The IPC office is nowhere near the NCAT building. Making things more difficult if that were possible, I recently personally delivered an application to the IPC’s building concierge in my efforts to comply with the legislation only to be told they would not accept it. Would you believe it, a short time later I received notification from the IPC banning me from the building! Does the IPC actually have that power? Who owns the building? The whole place has gone mad!”, stated Mr Walker. “I wear my Section 110 as a badge of honour. I will not be ashamed of it, this is the direct result of our democratic government abusing its powers and an agency which refuses to properly open its files to the public. The GIPA Act is in place to make government open, transparent and accountable. What a load of rubbish, they do everything to bog people down in convoluted processes in the hope they will just give up. Well I’m not giving up! My recent NCAT decision of September this year is another example of the government and judiciary working together to shut the public down. They’re all fascists in my view! My GIPA Application would have been finished by now, they usually take about a month. But instead I have to go through a whole court case just to get past first base which has taken up almost five months for nothing; disgraceful.” Make no mistake; every application to first seek approval to lodge an access application under constraint of a Section 110 Order, is a case within a case.* Parties make an application. * Parties give notice. * Parties make submissions.* Parties file evidence.* Parties can make Affidavits* Parties can summons witnesses.* Parties sit at the bar table and make verbal submissions.* Parties can cross-examine affidavit deponents.
So far NCAT has not been able to quantify the cost to the public purse for the conducting of these punitive Section 110 Orders applications. And there is no information available about the costs for the NCAT to process the resultant access applications under Section 110 constraints. Neither is there any data on what they actually cost the victimised GIPA Access Applicant, with all thus far being self-represented. So is the Section 110 process through the NCAT for approval to lodge an access application value for public monies? Most definitely not when considering the singular case of Mr Peter Zonnevylle being subject to a Section 110 Order, today's decision recording his access application remaining within the NCAT forum for (4) four years without progressing independently to the agency! There can be no doubt this is the ultimate example of NCAT facilitating a case within a case, with no benefit to the public who was gifted his free beneficial legislation intended to secure the legal right to access NSW government information. It is extraordinary the NCAT finds all this acceptable with no hint of reprimand to any agency procrastinating the access to information process. Of course the agencies successful in securing Section 110 Orders find all this very acceptable! It’s a process designed by bureaucrats to dissuade the public, cause as much frustration and cost as possible, to teach the public the lesson of who’s in charge and running the GIPA Show. There is much work to be done in the arena of the GIPA Act 2009, particularly Section 110. A great deal of that work encompasses the workings of the NCAT itself. In August 2024 Telina Webb of NSW Freedom of Information filed a request for urgent parliamentary inquiry into the NCAT and the NCAT Act 2013, with a copy of that report provided to the NSW Attorney-General Michael Daley.
The report was also forwarded to the NCAT President and Judge Lea Armstrong for her comment. Ms Webb continues to press for that valid request for parliamentary inquiry which will be reported on this Site in due course. Webb's report to parliament is available here.
Contact:NSW Civil & Administrative Tribunal, 1300 006 228 or ncatenquiries@ncat.nsw.gov.au
NSW Attorney-General Michael Daley, (02) 7225 6070 or office@daley.minister.nsw.gov.au Commentary on this article is invited via the form below.
NSW Attorney-General Michael Daley, (02) 7225 6070 or office@daley.minister.nsw.gov.au Commentary on this article is invited via the form below.