The report is dated 08th August 2024, but made public today in order to afford the recipient list the professional courtesy of time to formulate a plan of action before its general release.
It opens by referring to ‘the legacy left by former NSW Attorney General Mark Speakman, a trail of trauma, deep hurt and injustice towards the people of NSW.’
The document is damning.
It brings the Ministers to the core of the problems the public continues to endure since the inception of the envisaged super tribunal NCAT and the accompanying NCAT Act in 2013; the most prominent of which is the NCAT acting outside of its jurisdictional powers, particularly in the context of the Government Information (Public Access) Act 2009, GIPA, and the Privacy and Personal Information Protection Act 1998, PPIP, both pieces of legislation which do not make provision for any NSW Government Agency to claim legal costs against an Applicant.
The NCAT advertises each party pays its own costs.  This is the fundamental message from NCAT.  It’s published on its website.
NCAT professes that self-representation is the way to go, and “you can be your own best advocate.”  Really?!
But it doesn’t say you will likely find yourself facing opposite large legal teams including barristers, or perhaps the NSW Crown Solicitor, as you endeavour to navigate through the quagmire of formal protocols not disclosed at the outset.
And it most definitely does not say NSW government agencies will stack as many solicitors as possible onto the account ledgers to ensure they rack up as much legal costs as possible.
NCAT gives the first impression it is an informal setting but that could not be further from the truth.
Once inside the NCAT judicial sanctuary, self-represented Applicants will find they are in a court, make no mistake.
Some presiding members are magistrates, one or two an ex-judge, but mostly they are solicitors; wannabe magistrates and judges living their best judicial lives dealing with members of the public who are often NCAT virgins and so are easy targets for being railroaded.
After all, it’s a long journey to seek an Appeal, intimidated by having to deal with questions of law or applying for leave to appeal.  Most NCAT virgins have no idea where to start or what the likely outcomes are.
Some find it all too hard and just walk away disillusioned by their judicial experience.
The report by Telina Webb of NSW Freedom of Information is supported by indisputable evidence, some of which from her own personal experience along with that of her husband Paul McEwan.
The report sets out the damage the public are suffering, particularly in the area of legal costs, where she has created the new term Costs Wishes.
But likely most importantly the report addresses two (2) fundamental issues underpinning the NCAT which have been clearly ignored to this point; enabling legislation and beneficial legislation.

It's the white elephant in the NCAT Hearing Room.

In the context of this report, the focus is the Government Information (Public Access) Act 2009, GIPA, and the Privacy and Personal Information Protection Act 1998, PPIP.
The report identifies both pieces of legislation as beneficial; beneficial to the public and not for the benefit of NSW government agencies.
These pieces of beneficial, enabling legislation were parliament’s free gifts to the NSW public, ensuring the public’s right to privacy and protection of personal information, and ensuring access to NSW government information towards open, transparent, accountable government.
Enabling legislation is that which enlivens NCAT proceedings; for example an Access Application seeking government records under the GIPA Act 2009.  The GIPA Act is the enabling legislation.  The same applies with the PPIP Act 1998; lodge a request for review of agency conduct under the PPIP Act, the PPIP Act is the enabling legislation.

NCAT's jurisdictional powers are completely ineffective without enabling legislation.
These two fundamental factors identifying the category of legislation, that is beneficial and enabling, are nowhere to be seen in any caselaw concerning a Costs Wish; nowhere to be seen in agency submissions or statements; it’s just full steam ahead for a Costs Wish knowing the NCAT is all too easily convinced it’s the right and proper thing to do to a member of the public.

And once a Costs Wish is granted, in the context of GIPA or PPIP, agencies covertly share their victories state-wide with government colleagues to show just how to deal with those trusting the legislation and the judiciary, to send the clear message 'don't dare attempt to exercise your legal rights because you will be financially punished, because NCAT will give us exactly what we want.'
The full document is available here.
Public commentary is available on the form below, with the public invitation to highlight problematic issues with the NCAT and its Act, and to share Costs Wish stories.
Thank you!

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