ALQ March 2022 Gipa decisions

Issue: March 2022

GIPA decisions

Tribunal upholds refusal to access hotel quarantine documents

Access the decision: Else v Ministry of Health [2021] NSWCATAD 381.

The applicant sought access under the Government Information (Public Access) Act 2009 (GIPA Act) for documents relating to hotel quarantine during the COVID-19 pandemic.

The Tribunal held that: an 'Operating Procedure' document directed towards complex assessments involving serious public health issues, the redacted portions of which revealed the deliberative framework for the assessment of applications for exemption from hotel quarantine, could reasonably be expected to prejudice ongoing deliberative processes and the public interest consideration against disclosure should be given significant weight; and the significant amount of time and diversion of resources during the COVID-19 pandemic required to deal with documents relating to hotel quarantine exemptions outweighed the public interest in favour of disclosure.

Inadvertent disclosure may be relevant

Access the decision: Snape v Commissioner of Police [2022] NSWCATAP 63

If an agency inadvertently discloses information when responding to one access application under the GIPA Act, that disclosure may be 'relevant factual information' under s. 63(1)(a) of the Administrative Decisions Review Act 1987 for a Tribunal conducting administrative review of a separate decision.

First decision on excluded information provisions applicable to the NSW Crime Commission under GIPA

Access the decision: Arraf v NSW Crime Commission [2022] NSWCATAD 81.

The applicant sought information about actions taken by the NSW Crime Commission to effect the seizure and forfeiture of assets of an alleged ISIL fighter.

The Tribunal held that: information held by the NSW Crime Commission about the conduct of proceedings under the Criminal Assets Recovery Act 1990, and the subsequent vesting of property in the Crown, will constitute 'excluded information' under s. 43(2) of the GIPA Act; and provisions relating to 'excluded information' held by the Commission should not be read down by reference to international law.

NCAT does not exercise judicial power in reviewing GIPA decisions

Access the decision: Wojciechowska v Commissioner of Police [2022] NSWCATAD 70,

The applicant, a resident of Tasmania, who sought review in the Tribunal of a decision of the respondent under the GIPA Act, argued that her proceeding required the exercise of judicial power with respect to a matter 'between a State and a resident of another State' within the meaning of s. 75(iv) of the Constitution and, by reason of the constitutional implication in Burns v Corbett, the Tribunal was not able to determine the review application.

The Tribunal formed an opinion that it does not exercise judicial power in reviewing decisions under the GIPA Act but, rather, that its functions are administrative.

Other decisions in this edition

• Privacy
  

• Judicial review
  

• Merits review