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  NSWADT 307, Judicial Member Molony said:
- 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.
- 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.
"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.
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)..
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.")
All worthy of an airing and resolution, but if, who, how and when remains to be seen.