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Contents (2009 - 52)
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Government Information (Public Access) Act 2009 No 52
Current version for 1 July 2017 to date (accessed 23 September 2017 at 13:55)
Part 5
Part 5 Review of decisions
Division 1 Reviewable decisions
80   Which decisions are reviewable decisions
The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part:
(a)  a decision that an application is not a valid access application,
(b)  a decision to transfer an access application to another agency, as an agency-initiated transfer,
(c)  a decision to refuse to deal with an access application (including such a decision that is deemed to have been made),
(d)  a decision to provide access or to refuse to provide access to information in response to an access application,
(e)  a decision that government information is not held by the agency,
(f)  a decision that information applied for is already available to the applicant,
(g)  a decision to refuse to confirm or deny that information is held by the agency,
(h)  a decision to defer the provision of access to information in response to an access application,
(i)  a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant),
(j)  a decision to impose a processing charge or to require an advance deposit,
(k)  a decision to refuse a reduction in a processing charge,
(l)  a decision to refuse to deal further with an access application because an applicant has failed to pay an advance deposit within the time required for payment,
(m)  a decision to include information in a disclosure log despite an objection by an authorised objector (or a decision that an authorised objector was not entitled to object).
81   Extended review period where more than one decision made
When more than one reviewable decision is made in respect of a particular access application and those decisions are made at different times, the period (the review period) within which a person may apply for a review under this Part of any of those decisions is extended to the end of the review period for the last of those decisions.
Division 2 Internal review by agency
82   Right of internal review
(1)  A person aggrieved by a reviewable decision of an agency is entitled to a review of the decision by the agency that made the decision (which is referred to in this Part as an internal review).
(2)  Internal review of a decision is not available if the decision is made by the principal officer of the agency or a Minister (or a member of the Minister’s personal staff).
(3)  An internal review can be limited to a particular aspect of a reviewable decision (such as by being limited to particular information to which the decision relates).
(4)  There is to be no internal review of a decision that is or has been the subject of review by the Information Commissioner under this Part except internal review conducted on the recommendation of the Information Commissioner.
(5)  There is to be no internal review of a decision that is or has been the subject of an administrative review by NCAT as provided by this Part.
83   Time within which internal review can be applied for
(1)  Internal review of a decision cannot be applied for more than 20 working days after notice of the decision is given to the access applicant or (in the case of the deemed refusal by an agency to deal with an access application) more than 20 working days after the deemed refusal.
(2)  An agency can agree to accept an application for internal review out of time.
(3)  An agency must acknowledge receipt of an application for internal review by notice to the applicant for review given as soon as practicable after the agency receives the application and in any event within 5 working days after the application is received.
84   Conduct of internal review
(1)  An internal review is to be done by making a new decision, as if the decision being reviewed (the original decision) had not been made, with the new decision being made as if it were being made when the access application to which the review relates was originally received.
(2)  An internal review is not to be done by the person who made the original decision and is not to be done by a person who is less senior than the person who made the original decision.
85   Fee for internal review
(1)  A fee of $40 is payable by the applicant for an internal review.
(2)  No fee is payable for internal review of a decision to refuse to deal with an access application if the decision arises because the agency did not decide the access application within time (and as a result is deemed to have refused to deal with the application).
86   Required period for determination of internal review
(1)  An agency must make its decision on an internal review and give the applicant notice of the agency’s decision within 15 working days (the review period) after the agency receives the application for internal review.
(2)  The review period can be extended by up to 10 working days if consultation is required with another person with whom the agency has not previously consulted in relation to the application.
(3)  The agency must (before the review period ends) give the applicant notice of any extension of the review period and indicate the date on which the extended review period will end.
(4)  The review period can also be extended by agreement with the applicant for review.
(5)  If a decision on the internal review is not made within the review period, the agency is deemed to have made that decision by making the original decision again, and the applicant for review is entitled to a refund of any fee paid to the agency for the review.
87   No processing charges for internal review
(1)  An agency is not entitled to impose any processing charges for work done in connection with an internal review.
(2)  This section does not affect any requirement to pay a processing charge imposed in connection with the original decision (unless the decision on the internal review otherwise requires).
88   No internal review of decision on internal review
A person is not entitled to an internal review of a decision made on the internal review of a reviewable decision.
Division 3 Review by Information Commissioner
89   Right to have decision reviewed by Information Commissioner
(1)  A person aggrieved by a reviewable decision of an agency is entitled to have the decision reviewed by the Information Commissioner under this Division.
(2)  A reviewable decision must be the subject of an internal review by the agency under this Part before it can be reviewed by the Information Commissioner unless:
(a)  the aggrieved person is the access applicant, or
(b)  an internal review of the decision is not available to the aggrieved person under this Part.
(3)  The Information Commissioner may exercise any function of the Information Commissioner under the Government Information (Information Commissioner) Act 2009 for the purposes of or in connection with the review of a reviewable decision of an agency.
(4)  Conduct of an agency that constitutes a reviewable decision of the agency cannot be the subject of a complaint to the Information Commissioner under section 17 of the Government Information (Information Commissioner) Act 2009.
90   Time limit for applying for review by Information Commissioner
An application for the review of a decision by the Information Commissioner must be made within 40 working days after notice of the decision to which the review relates is given to the applicant.
91   Disclosure of public interest information
The Information Commissioner must not, in the exercise of functions in connection with a review under this Division, disclose any information for which there is (or for which an agency claims there is) an overriding public interest against disclosure.
92   Recommendations on review
(1)  On a review of a decision under this Division, the Information Commissioner may make such recommendations to the agency about the decision as the Information Commissioner thinks appropriate.
(2)  The recommendations specifically provided for by this Division do not limit the recommendations that the Information Commissioner can make.
93   Recommendation for reconsideration of matter by agency
(1)  The Information Commissioner may recommend that the agency reconsider the decision that is the subject of the Information Commissioner’s review and make a new decision as if the decision reviewed had not been made.
(2)  The agency may, pursuant to such a recommendation, reconsider the decision and make a new decision, whether or not the decision has already been the subject of internal review by the agency.
(3)  The agency’s reconsideration of a decision is to be by way of internal review of the decision (under Division 2) unless the decision has already been internally reviewed, in which case the agency is to reconsider the decision and make a new decision.
(4)  Unlike an internal review, the reconsideration of a decision that is not an internal review:
(a)  can be done by the person who made the original decision, and
(b)  can be the reconsideration of a decision made by the principal officer of the agency.
(5)  The reconsideration of a decision that is not an internal review cannot be done by a person who is less senior than the person who made the original decision.
(6)  No fee is payable for any reconsideration (including by way of an internal review) of a decision pursuant to a recommendation of the Information Commissioner.
94   Recommendation as to public interest against disclosure
(1)  The Information Commissioner may make a recommendation against a decision of an agency that there is an overriding public interest against disclosure of government information.
(2)  The Information Commissioner must consult with the Privacy Commissioner before making a recommendation under this section about a decision that concerns a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to section 14).
(3)  Despite section 91, the Information Commissioner may disclose information to the Privacy Commissioner in the course of consulting with the Privacy Commissioner under this section.
95   Recommendation as to general procedure of agency
The Information Commissioner may make a recommendation that any general procedure of an agency in relation to dealing with access applications be changed to conform to the requirements of this Act or to further the object of this Act.
96   Information Commissioner may refuse to review decision
The Information Commissioner may refuse to review or to deal further with a review of a decision of an agency if the Information Commissioner is satisfied that:
(a)  the application for review is frivolous, vexatious, misconceived or lacking in substance, or
(b)  the review would require an unreasonable and substantial diversion of the resources of the Information Commissioner, or
(c)  the applicant for review has failed without reasonable excuse to co-operate with the Information Commissioner in connection with the review, or
(d)  the applicant for review cannot by reasonable efforts be contacted by the Information Commissioner.
97   Onus on agency to justify decisions
(1)  In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section.
(2)  If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review.
(3)  If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review.
98   No review of decisions administratively reviewed by NCAT
A decision is not to be the subject of review by the Information Commissioner under this Division if the decision is or has been the subject of an administrative review by NCAT.
99   Referral of agency decision to NCAT
The Information Commissioner may, with the consent of the applicant for review, refer a decision of an agency that is the subject of a review by the Information Commissioner under this Division to NCAT for an administrative review.
Division 4 Administrative review by Civil and Administrative Tribunal
100   Administrative review of decision by NCAT
A person who is aggrieved by a reviewable decision of an agency may apply to NCAT for an administrative review under the ADR Act of the decision (referred to in this Division as an NCAT administrative review).
Note.
 A reviewable decision does not have to be internally reviewed or reviewed by the Information Commissioner before it can be the subject of an NCAT administrative review.
101   Time for applying for NCAT administrative review
(1)  An application for NCAT administrative review must be made within 40 working days after notice of the decision to which the review relates is given to the applicant (unless subsection (2) gives a longer period to apply for NCAT administrative review).
(2)  If the decision is the subject of review by the Information Commissioner, an application for NCAT administrative review can be made at any time up to 20 working days after the applicant is notified of the completion of the Information Commissioner’s review.
(3)  If an application for NCAT administrative review of a decision is made while the decision is the subject of review by the Information Commissioner, the Information Commissioner’s review is to end.
(4)  NCAT may, on application by a person wanting to make an application for NCAT administrative review out of time, extend the time for the making of such an application by the person if NCAT is of the opinion that the person has provided a reasonable excuse for the delay in making the application.
(5)  An application to extend the time for the making of an application for NCAT administrative review must be in writing unless NCAT dispenses with the requirement in a particular case.
(6)  The time for making an application for NCAT administrative review may be extended under this section even if that time has expired.
102   No internal review under ADR Act
(1)  The procedure for internal review of a decision provided for by this Part applies to the exclusion of section 53 (Internal reviews) of the ADR Act in the case of a decision that is a reviewable decision under that Act.
(2)  A reference in the ADR Act to internal review of a reviewable decision under that Act is, in its application to a reviewable decision under this Part, to be read as a reference to internal review of the decision under this Part.
103   Operation of other ADR Act provisions
The provisions of section 58 (Duty of administrator to lodge material documents with Tribunal where decision reviewed) and Division 2 (Effect of pending applications on reviewable decisions) of Part 3 of Chapter 3 of the ADR Act do not apply to an application for NCAT administrative review under this Division.
104   Right of appearance before NCAT
(1)  The Information Commissioner has a right to appear and be heard in any proceedings before NCAT (and proceedings on an appeal in respect of any such proceedings) in relation to a review under this Division.
(2)  The Privacy Commissioner has a right to appear and be heard in any proceedings before NCAT (and proceedings on an appeal in respect of any such proceedings) in relation to a review under this Division of a decision that concerns a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to section 14).
(3)  Any person who could be aggrieved by a decision of NCAT on a review under this Division has a right to appear and be heard in any proceedings before NCAT in relation to the review.
105   Onus on agency to justify decisions
(1)  In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section.
(2)  If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review.
(3)  If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review.
106   Decisions about Cabinet and Executive Council information
(1)  On an NCAT administrative review of a decision by an agency that there is an overriding public interest against disclosure of information because the information is claimed to be Cabinet or Executive Council information (as described in Schedule 1), NCAT is limited to deciding whether there were reasonable grounds for the agency’s claim and is not authorised to make a decision as to the correct and preferable decision on the matter.
(2)  If NCAT is not satisfied, by evidence on affidavit or otherwise, that there were reasonable grounds for the claim, it may require the information to be produced in evidence before it.
(3)  If NCAT is still not satisfied after considering the evidence produced that there were reasonable grounds for the claim, NCAT is to reject the claim when determining the review application and may then proceed to make a decision as to the correct and preferable decision on the matter.
(4)  NCAT is not to reject the claim unless it has given the Premier a reasonable opportunity to appear and be heard in relation to the matter.
(5)  The Premier is a party to any proceedings on an application under this section.
107   Procedure for dealing with public interest considerations
(1)  In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.
(2)  On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant’s representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.
(3)  On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of:
(a)  the public and the applicant, and
(b)  the applicant’s representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.
108   Delayed decisions
(1)  NCAT may on the application of an agency make an order allowing the agency further time to decide an access application if the decision that is the subject of NCAT administrative review is a decision the agency is deemed to have made because the access application or internal review concerned was not decided within time (referred to in this section as a deemed refusal decision).
(2)  Such an order may be made subject to such conditions as NCAT thinks fit, including either of the following conditions:
(a)  a condition that if a decision is made to provide access to the information concerned during the further time allowed, any charge that would otherwise be payable in connection with providing that access is to be reduced or waived and the applicant for the NCAT administrative review may apply to NCAT for an order that the applicant’s costs in proceedings on the NCAT administrative review are to be paid by the agency,
(b)  a condition permitting the agency to impose processing charges for work done in connection with the access application (as if the application had been decided within time).
(3)  If an agency makes a reviewable decision (the subsequent decision) on an access application following a deemed refusal decision on the application and while the deemed refusal decision is the subject of NCAT administrative review, NCAT may on application by the applicant deal with the application for NCAT administrative review as if it were an application for review of the subsequent decision.
109   NCAT may refuse to review decision
NCAT may refuse to review or to deal further with a review of a decision of an agency if NCAT is satisfied that the application for review is frivolous, vexatious, misconceived or lacking in substance.
110   Orders to restrain making of unmeritorious access applications
(1)  NCAT may order that a person is not permitted to make an access application without first obtaining the approval of NCAT if NCAT is satisfied that the person has made at least 3 access applications (to one or more agencies) in the previous 2 years that lack merit. Such an order is a restraint order.
(2)  An access application is to be regarded as lacking merit if:
(a)  the agency decided the application by refusing to deal with the application in its entirety, or
(b)  the agency decided the application by deciding that none of the information applied for is held by the agency, or
(c)  the access applicant’s entitlement to access lapsed without that access being provided (including as a result of failure to pay any processing charge payable).
(3)  A restraint order may be made to apply to all access applications made by the person the subject of the order or may be limited by reference to particular kinds of information or particular agencies.
(4)  A person who is subject to a restraint order cannot apply to NCAT for approval to the making of an access application by the person without first serving notice of the application for approval on the agency concerned and the Information Commissioner.
(5)  An application for a restraint order against a person may be made by an agency that receives an access application from the person (whether or not the agency has decided the application) or by the Minister or the Information Commissioner.
(6)  NCAT may order that a person who is the subject of a restraint order is not permitted to apply to NCAT for approval to make an access application if NCAT is satisfied that the person has repeatedly made applications for approval that are lacking in substance.
(7)  While a restraint order is in force against a person, any application for government information made to an agency in contravention of the order is not a valid access application.
111   Referral of systemic issues to Information Commissioner
NCAT may refer any matter to the Information Commissioner that NCAT considers is indicative of a systemic issue in relation to the determination of access applications by a particular agency or by agencies generally.
112   Report on improper conduct
If NCAT is of the opinion as a result of an NCAT administrative review that an officer of an agency has failed to exercise in good faith a function conferred on the officer by or under this Act, NCAT may bring the matter to the attention of the Minister who appears to NCAT to have responsibility for the agency.
112A   Relationship of Division with ADR Act and NCAT Act
The provisions of this Division are intended to prevail to the extent of any inconsistency with provisions of the ADR Act or the NCAT Act.