Information Access Case Note - National Tertiary Education Union v Southern Cross University [2015] NSWCATAD 151

View the full decision here National Tertiary Education Union v Southern Cross University [2015] NSWCATAD 151

What you need to know

The Tribunal determined that processing charges are imposed at the time the application is decided, when all costs of dealing with the application are known. Advice to an applicant advising estimated processing charges is not a decision to impose processing charges, merely an indication of what the charges are likely to be.

Further the Tribunal clarified that an agency can apply reductions to the amounts calculated as an advance deposit in terms of sections 65 (financial hardship) and 66 (special public benefit) of the GIPA Act but that the 50% reductions provided by these sections are not cumulative.

Legislative background

Section 64 of the GIPA Act does not empower an agency to make a decision about processing charges, rather it provides that the agency may impose a charge. The practical application being that charges are not imposed until it is known how long it has taken to deal with the application, which is at the time the application is decided.

Sections 65 and 66 of the GIPA Act provide for reductions in processing charges. These reductions can only be made when the access application has been decided. The wording of the provisions refer to “a processing charge” assessed by the agency and the discount applies to the total processing charge not to the already discounted processing charge.

Factual background

The National Tertiary Education Union applied to Southern Cross University for access to information. The University notified the Union that processing charges of $5,612.40 were payable for the information requested, and required the Union to pay an advance deposit of $2,791.20. The Union requested the processing charges be withdrawn, and that as the information was of special benefit to the public a 50% discount should be applied. Further the Union requested another discount of 50% as the Union is a non-profit organisation. By applying both discounts together the Union argued that no charges were payable.

The University decided that the Union was not a non-profit organisation, but did accept the request that the application had special benefit to the public. The University advised the processing charges were now assessed to be $5,582.40, discounted by 50% to $2,791.20. The University advised that it required a 50% advance deposit of $1,395.60 by 19 December 2014. The Union applied to the Tribunal for a review on 24 November 2014. The University, on 23 December 2014, advised the Union as the advance deposit had not been paid by the specified date, that it had decided to refuse to deal any further with the application.

The Tribunal determined that the University had not made a reviewable decision to impose a processing charge, and the only decision under review was the decision to require payment of an advance deposit. The Tribunal determined that the Union had not been given the full amount of working days to pay the advance deposit and therefore varied the University’s decision to require the payment of the advance deposit from 19 December 2014 to 17 working days from 17 July 2015, the date of the decision.