Posted on June 7, 2016 by

Restraint Orders under the GIPA Act – an update

Last year, LTL wrote about a decision of the NSW Civil and Administrative Tribunal (Pittwater Council v Walker)  in which restraint orders were made under s110 of the Government Information (Public Access) Act 2009 (GIPA Act) preventing Mr Walker from lodging access applications with Pittwater Council without first obtaining the approval of the Tribunal. Deputy President Hennessy has recently given approval to Mr Walker to lodge two access applications with Pittwater Council and in doing so clarified the considerations that will be taken into account when dealing with an application of this kind.

The decision in Walker was the first occasion in which restraint orders under the GIPA Act were made. The recent decision in Walker v Pittwater Council [2016] NSWCATAD 78 is the first time that the Tribunal has given approval to a restrained person to lodge an access application.

As stated earlier, Mr Walker was the subject of a restraint order made by the Tribunal. He later sought approval from the Tribunal to make two access applications to the Council. The first sought documentation about a complaint that Mr Walker had made to Council regarding the conduct of one of its staff at a Council meeting. The second application sought documents regarding further restrictions that Council had placed on Mr Walker in relation to his dealings with it.

The power to make a restraint order in s110 of the GIPA Act does not set out what factors the Tribunal should take into account when deciding whether it should give approval to a restrained person to make an access application.

However, this does not mean that the Tribunal’s discretion is unconfined. Deputy President Hennessy acknowledged that the Tribunal was bound to exercise its discretion reasonably having regard to the subject matter, scope and purpose of the GIPA Act. After considering a number of provisions of the Act, Deputy President Hennessy concluded that the one consideration it had to take into account was the ‘substance or merit of the proposed applications’, including a consideration of the limitations on access which are contained in the Act. These include circumstances where there is an overriding public interest against disclosure of information, information is not held by an agency or the agency is entitled to refuse to deal with an application. In addition, an application would be lacking substance if it met any of the tests in s110(2) of the Act. The number and frequency of applications made by a person may be relevant, but would be less significant than the substance or merit of the application.

Having regard to the applications themselves, Deputy President Hennessy granted its approval to Mr Walker. In doing so, the Deputy President gave weight to Mr Walker’s ‘enforceable right to access government information’ under the GIPA Act.

Whether the applications were ‘frivolous, vexatious or misconceived’ was not relevant in the consideration as to whether it granted approval for the lodging of applications. In this regard, the Deputy President stated at [27]:

For the reasons which I have given, whether or not the application are vexatious are irrelevant. Unreasonable interference with the agency’s operations is not a restriction that the GIPA Act places on the making of an application…

In this particular case, the Council did not address the merits or substance of the applications, except to state that Mr Walker was seeking to ‘circumvent the due diligence processes of Council by using the GIPA Act… as a form of review of the complaint issues decided by [the] Council.’ Council’s focus was on the burden that his previous applications had on its resources.

The case provides some insight into how the Tribunal will exercise its discretion. Each case will turn on its own particular facts. However, a Council seeking to resist an application of this kind will need to focus on the substance or merit of the particular access application for which approval is sought. That is, it will need to consider the limitations on access to government information that are contained in the GIPA Act including the s110(2) factors. However, careful consideration would need to be given to the s110(2) factors, because they will not always be readily applicable to a single application.