​​​

Steps in an government information access matter

These a​re the steps you need to follow to apply to NCAT for the review of government information access decision.

Step 1: Decide if you want to apply to the agency to internally review the decision and/or apply to the Information Commissioner to review the decision
Step 2: Check that NCAT can review the decision 
Step 3:Consider whether you want a lawyer or agent to represent you
Step 4: Apply to NCAT to have the decision reviewed
Step 5: Lodge the application form by the deadline and pay the fee
Step 6: Receive a letter from NCAT
Step 7: Case conference
Step 8: Prepare for hearing
Step 9: Take part in the hearing
Step 10: Receive NCAT's decision
Step 11:  Consider appealing the decision if you are not satisfied

Step 1: Decide if you want to apply to the agency to internally review the decision and/or apply to the Information Commissioner to review the decision

After the agency has made the first decision, you have the option of applying to the agency for an internal review and/or applying to the Information Commissioner​ for a review of the decision. 

You do not have to do either of those things before applying to NCAT for a review of the decision.

Step 2: Check that NCAT can review the decision

The government agency which made the decision will tell you if your decision can be reviewed by NCAT. 

NCAT ​​has power to review a decisions including a decision:

  • that the application is not a valid application
  • to transfer the application to another agency
  • to refuse to give access to information because of an overriding public interest against disclosure
  • to refuse to deal with the application because:
    • it would be unreasonably expensive or time consuming
    • the agency does not hold the information.

If you are unsure whether NCAT can review a decision about access to government information, you may need to check the Government Information (Public Access Act) 2009.

Step 3: Consider whether you want a lawyer or agent to represent you

You can present your own case at NCAT or have a lawyer or non-lawyer agent represent you. You will usually need to be present to give your instructions to your lawyer or agent. Your lawyer or agent needs to fill out a Notice of Representation and submit it to the registry in person or by post. If a non-lawyer agent is representing you, you also need to sign the Notice before it is submitted. In both cases, you have to send a copy of the Notice to the government department which made the original decision.

Your agent needs to ask for permission from the Tribunal Member the next time the case is listed. You should be present with the agent in case the Tribunal does not allow the agent to appear for you. A lawyer does not need to ask for permission from the member.

Step 4: Apply to NCAT to have the decision reviewed

To apply to NCAT, you need to fill out an Application for review . Please post or bring your application to NCAT registry. You cannot fax the application or lodge it via the internet.

You will need to include the following information on your application for review form:

  • your name, address and telephone number
  • the name of the government agency that made the decision you want reviewed
  • the date the decision and the internal review decision, if any, were made
  • a copy of the original decision and internal review decision, if any
  • a brief outline of why you think the decision is wrong.

Step 5: Lodge the application form by the deadline and pay the fee

You should apply to NCAT within 40 working days after receiving the decision.

If you are applying after this time frame, you will need to ask for an extension. You must include a good reason why your application is late. NCAT will then decide whether or not to accept your late application.

A fee applies for most applications to NCAT. Check the Fees and charges page to see which fee applies to you. 

Step 6: Receive a letter from NCAT

You will receive a letter from NCAT called a Notice of Listing and will be given a date to attend NCAT for a 'case conference'.

Step 7: Case conference

A case conference is a preliminary session held at NCAT. A Tribunal Member will talk to you and a representative from the agency about identifying the issues and exploring ways in which the dispute may be resolved.

The Information Commissioner will also be advised about your application and may attend the case conference.

The agency will be asked to complete a review sheet, to give to you and the Member at the case conference. The review sheet contains detailed information about the basis for the agency’s decision.

If the agency has not provided the following information before the case conference, the Member will direct the agency to provide it:

  1. Copies of the applications and decisions made under the GIPA Act with respect to the matter
  2. A schedule of documents, identifying, in tabular form, each document in dispute by number and giving details of its date, nature, and author, and of the basis on which access was refused

In addition the agency will give to the Tribunal the documents under review on a confidential basis:

(a) documents considered to be subject to a conclusive overriding public interest against disclosure to be sent to the Tribunal in a sealed envelope marked ‘conclusive presumption documents’

(b) documents considered to be subject to a non-conclusive overriding public interest against disclosure to be sent to the Tribunal in a sealed envelope marked ‘non-disclosure documents’.

At the case conference, the Member will explore four options for resolving the dispute. These options are:

  1. Direct neg​​​otiation among the parties
  2. Mediation by a mediator provided by the Tribunal
  3. Preliminary conference
  4. Hearing

After the case conference, the matter will be listed for mediation if suitable. App​​lications that need further procedural directions will be listed for a directions hearing.

If you want to summons a person to produce documents or give evidence at the hearing, you should ask the Member during the case conference to approve the summons. Learn more about summons​.

Step 8: Prepare for hearing

The Tribunal Member will tell you and the other party when you should file written material which supports your case. The material may include statements and evidence, submissions and references to cases or legislation which you will rely on. Read more about how to prepare an affidavit or statement.

Step 9: Take part in the hearing

NCAT's hearings are less formal than court hearings. In most cases, the application will be heard by a single judicial member.

In administrative review hearings, the respondent (government agency) usually gives their evidence first. The applicant then presents their evidence. 

Afterwards, the Tribunal member will decide whether the government agency made the correct decision. In most cases the member will consider the case and make their​ decision at a later date. You should receive the decision within 3 months. Complex matters may take longer.

Step 10: Receive NCAT's decision

You will receive a letter telling you of the decision that NCAT has made. You will be notified by phone before the reasons are published. You will receive a copy of the written decision, as well as information about your appeal rights. The decision will also be available on the Caselaw website .

NCAT can make various decisions including:

  • affirming the government agency's decision (stating that the original decision is correct)
  • reversing the decision completely or in part
  • substituting a new decision for the original decision; or
  • ordering the government agency to reconsider the decision.

Step 11: Consider appealing the decision if you are not satisfied

You may have the right of appeal to the Appeal Panel of NCAT. For more information, view Appeals against decisions made by NCAT Divisions. In some instances there is also a right of appeal to the Supreme Court. If you are not sure of your appeal rights, you should seek legal ad​vice​.

       

  ​