Posted on April 22, 2020 by Matt Harker and Carlo Zoppo 1

Dealing with Difficult GIPA Applicants: Section 110 Restraint Orders Back in Fashion

For the first time since 2016, the Civil and Administrative Tribunal has restrained individuals from making applications for access to information under the Government Information (Public Access) Act 2009 (GIPA Act).

Section 110

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).

Port Stephens Council v Webb and Department of Education v Zonnevylle

Amidst the apparent hiatus of applications, both Port Stephens Council and the Department of Education commenced separate proceedings in 2019 seeking restraint orders against individuals who:

• in Council’s case, lodged  50 formal access applications and 93 informal access applications since 2011, with 37 formal applications and 32 informal applications lodged in the previous three years;
• in the Department’s case, lodged 24 formal access applications since 2010, with 12 of those applications being made in the last four years.

In both cases, the access applications related to similar information. Indeed, the Tribunal found in both cases 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 both applicants 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 in both proceedings was unlimited in time, meaning that the access applicants can 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 and the two decisions of the Tribunal demonstrate 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 one or two 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 two decisions, which can be viewed here and 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, please contact Carlo Zoppo on 8235 9705 or Matt Harker on 8235 9714. Both Carlo and Matt acted for Port Stephens Council in its successful application under s 110 of the GIPA Act.