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Wednesday, May 23, 2012

Information Commissioner NSW and Administrative Decisions Tribunal differ over "right to appear and be heard"

A significant difference emerged late last and earlier this year between the Information Commissioner NSW and the NSW Administrative Decisions Tribunal concerning the commissioner's role in cases before the tribunal. It's not known whether the Commissioner is sticking to her guns that her rights are broader than two tribunal members envisage, and resolution of the issue by the courts is problematic. But applicants may find themselves without the same level of support than hitherto particularly in those cases where the Commissioner prior to ADT consideration undertook a review, and would bring that knowledge and a view about the merits of the case to the table.

The GIPA act (s 104) provides that the Information Commissioner (and the Privacy Commissioner in review cases that concern a privacy-related public interest consideration) "has a right to appear and be heard" in matters before the tribunal. (Unique I think in Australian FOI schemes, as are other aspects of the NSW review model.)  The act and the Administrative Decisions Tribunal Act do not mention the commissioners in listing those who are parties to proceedings, although the tribunal (ADTA s 67) may make any person a party in certain circumstances. 

The issue is whether the "right to appear and be heard" is subject to implied limitations. In separate decisions the tribunal has said the Commissioner's right does not extend to making submissions in relation to the merits or contentions of a review application. Or to be given access when evidence is given in the absence of the applicant, the applicant's legal representative and the public. The tribunal in both cases ruled the commissioner's role is limited to submissions in relation to the applicable law and policy to assist the tribunal in the conduct of a review.

 In neither however did it undertake detailed analysis or cite precedents to support its interpretation.The Information Commissioner in a submission in a later case argued the right goes further than making submissions relating to questions of law and extends to adducing evidence relevant to the application. The published decision in that case contains no mention of the the issue although the points raised certainly deserve consideration. The Commissioner hasn't said anything publicly about the matter as far as I'm aware.

The commissioners had a couple of hours on Monday with parliament's Ombudsman and Police Integrity Commission Committee so interesting to see, when the transcript emerges, what came up there.

In the first ADT decision, Hurst v Wagga Wagga City Council [2011] NSWADT 307, Judicial Member Molony said:
  1. While the Information Commissioner has a right to appear and be heard in a Tribunal review, it is for the applicant and the agency to determine how they will argue their respective cases. Given the structure of the GIPA Act, and the provisions of s 105(2) ..., I think that the Information Commissioner's role in not one which should descend to the merits. Rather, the Information Commissioner's role is to assist the Tribunal with respect to the applicable law, relevant polices and guidelines, and on issues of interpretation of the Act. I do not read s 104, in the context of the Act as a whole, as envisaging the Information Commissioner's role as being one that descends to merits arguments and contentions.
  1. I am reinforced in this conclusion by the provisions of Division 3 of Part 5, which operate so that the Information Commissioner is not a party to a Tribunal review of a decision that has been the subject of review by the Information Commissioner. The Act provides that when conducting a review the Information Commissioner makes recommendations, which can then be considered by the agency on reconsideration under s 93. The decision then made is that of the agency, not that of the Information Commissioner. If there is then a Tribunal review, it is the applicant and the agency that are parties to that review: not the Information Commissioner. The fact that the Information Commissioner is not a party to such proceedings, reinforces the point that the legislature did not intend the Information Commissioner's role in Tribunal review to be one in which that office would argue the merits.
Deputy President Higgins in Black v Hunter New England Local Health District [2011] NSWADT 295 used the same reasoning and words [51-53] before concluding that there was "no clear support" for the commissioner's contentions that the right to appear and be heard extended to the right to be privy to evidence received and heard in the absence of the public, the applicant and the applicant's representative pursuant to subsections 107(2) and (3). The Deputy President said she understood "that the Information Commissioner may be assisted in her role in being provided with a copy of the information in dispute. However, that is a matter to be resolved between the agency and the Information Commissioner."
 "I stress that the Information Commissioner's role before the Tribunal is not that of an advocate for an applicant, or indeed a respondent. The role of the Information Commissioner is clearly one of impartiality. If not, it is arguable that its role as a reviewer of decisions of an agency may become compromised.
The Commissioner in a submission in a later case seen by Open and Shut contends that the respondents arguments, based on Hurst, about the limits on the right to appear and be heard, were incorrect. The submission and issues raised were not mentioned in Judicial Member Isenberg's decision.

In the submission the Commissioner addressed the points raised by the respondent as follows:
a. the absence of express terms in the GIPA Act extending the Information Commissioner's role to the "merits" ( The Commissioner argues: "Words with a broad meaning are to be given that meaning in the absence of express words limiting the breadth of that meaning. There is nothing in the express words of s104(1) to limit, nor is there any basis in the language, context or scheme of the GIPA Act  on which to imply limits, on the Information Commissioner's right to appear and be heard in the way suggested by the Tribunal.)

 b. principles developed in the context of adversary justice that it is for the parties to argue their respective cases and the courts to determine them on that basis: ( "The Tribunal is not bound by the rules of evidence and procedure and is expressly empowered to conduct "inquisitorial" proceedings (s73(2) & (3) of the Administrative Decisions Tribunal Act)

 c. the Information Commissioner not automatically being a "party" to any Part 5 Div 4 application under the GIPA Act in which she may appear and be heard. ("The Information Commissioner's status as a party under s 67 of the ADT Act is not relevant to determining the content of her right to be heard under s104(1) of the GIPA Act. In the absence of a statutory description of the content of that right, the following comprise the general law factors which may be relied on to determine the scope and content of a right to be heard:
a. the rules of the Tribunal (Russell v Duke of Norfolk (1949) 1 All ER 109) ("Russell');
b. the statutory context within which the application is made (Mobil Oil AustraliaPty Ltd v Federal Commissioner of Taxation(1963) 113 CLR 475 at 503-504) ("Mobil');
c. the nature of the party or affected or interested person's interest in the application (Kioa v West (1985) 159 CLR 550) ("Kioa");
d. the circumstances of the individual application (Kioa)..
In accordance with these common law factors, it is submitted that the content of the
Information Commissioner's right to be heard in Part 5 Div 4 applications to the Tribunal
will be affected by:
a. the Tribunal's procedural obligations under the ADT Act;
b. the framework established by the Government Information (Information Commissioner) Act 2009 ("the GIIC Act"), GIPA Act and ADT Act in relation to external review and powers and functions of the Information Commissioner;
c. the nature of the Information Commissioner's interest in the appearing;
d. circumstances peculiar to the application under consideration.")

The submission goes into further detail on each of these points.

All worthy of an airing and resolution, but if, who, how and when remains to be seen.

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