Government Information (Public Access) Act 2009 No 52
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.