Posted on April 22, 2020 by Carlo Zoppo and
Dealing with Difficult GIPA Applicants: Section 110 Restraint Orders
For the first time since 2016, the Civil and Administrative Tribunal has restrained an individual from making applications for access to information under the Government Information (Public Access) Act 2009 (GIPA Act).
Section 110 of the GIPA Act gives the Tribunal power to make an order preventing a person from making applications for access to information.
It is an important tool for public authorities in limiting the often considerable drain on resources posed by persistent applicants who regularly lodge access applications which lack merit. Despite that, the power had not been invoked for a number of years.
This was potentially the result of the limited circumstances in which the Tribunal can make a restraint order. Relevantly, s 110 provides that:
(1) NCAT may order that a person is not permitted to make an access application without first obtaining the approval of NCAT (a restraint order) if NCAT is satisfied that:
(a) at least 3 access applications (to one or more agencies) in the previous 2 years have been made that lack merit, and
(b) the applications were made by the same person or by any other person acting in concert with the person.
An access application will only lack merit where:
- the relevant authority refused to deal with the application in its entirety;
- the relevant authority determined that none of information applied for was held by the authority; or
- the access applicant’s entitlement to access information lapsed without the information being providing (including where the applicant failed to pay the relevant processing charge).
Department of Education v Zonnevylle
Amidst the apparent hiatus of applications, the Department of Education commenced proceedings in 2019 seeking restraint orders against an individual who lodged 24 formal access applications since 2010, with 12 of those applications being made in the last four years.
The access applications related to similar information and the Tribunal found that all access applications could be traced to, and related to, a particular grievance held by the access applicant with the relevant authority.
Furthermore, the Tribunal found that the applicant for information had caused a considerable drain on the resources of the relevant authority, and that this was a significant factor in determining to make a restraint order.
Significantly, the restraint order was unlimited in time, meaning that the access applicant could not lodge further access applications years into the future without first approaching the Tribunal.
Lessons from the Tribunal
Whilst the power to deprive an individual of their right to information may be seen by some to be draconian, it is a power that is necessary. This decision of the Tribunal demonstrates that the NCAT will make such an order where the circumstances necessitate such an order.
Indeed, it is important to keep in mind that the GIPA Act is directed not just to maintaining open and responsible government, but also towards ensuring effective government. That can be undermined by the drain on resources caused by individuals lodging an excessive number of access applications on a persistent basis.
It is clear that, in an appropriate case, the Tribunal will not be reluctant to prevent such applicants from continuing to drain resources by way of persistent applications.
In this regard, the decision, which can be viewed here, may have opened the doors to an increase in public authorities seeking to invoke the power under s 110 of the GIPA Act.
To discuss this post or any other matter please contact Carlo Zoppo, Partner on 8235 9705.
Please note that the information in this post is considered to be accurate at the time of publication. The post does not constitute the provision of legal advice to any person. Any person seeking to use or rely on the information in this post should seek independent advice to satisfy themselves of the accuracy of the information.