Hall v Independent Commission Against Corruption (No 2)

[2008] NSWADT 299

CITATION:	Hall v Independent Commission Against Corruption (No 2) [2008] NSWADT 299
DIVISION:	General Division
PARTIES:	APPLICANT Ian Milton Hall RESPONDENT The Independent Commission against Corruption
FILE NUMBER:	083095
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	9 October 2008
DATE OF DECISION:	6 November 2008
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Access to documents – right of review
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Freedom of Information Act 1989 Independent Commission Against Corruption Act 1988
CASES CITED:	Hall v Independent Commission Against Corruption [2008] NSWADT 271
REPRESENTATION:	APPLICANT In person RESPONDENT A Johnson, solicitor
ORDERS:	The application is dismissed.

Introduction

1 On 14 March 2008, Mr Hall made an application seeking review of a decision by the Independent Commission Against Corruption (‘the ICAC’) in regard to a request he had made, pursuant to the Freedom of Information Act 1989 (‘the FOI Act’), for access to documents. In that request Mr Hall sought access to the following document:

‘The ICAC report and recommendations to the ORC upon which that Committee made judgment concerning my allegations of corruption against the ombudsman, Bruce Barbour, Senior Investigator Dominic Riordan and solicitor Nedwich – ICAC reference E04/1024.’

2 The ICAC responded to this request by advising Mr Hall that the report he sought access to fell within ICAC’s complaint handling and investigation function and that by reason of section 9 and Schedule 2 of the FOI Act, the provisions of that Act did not apply.

3 When the matter came before the Tribunal at directions hearing, the parties consented to a time table within which the parties were to file and serve their respective material. The parties also consented to the Tribunal determining the application on the papers.

4 The position of ICAC was that the Tribunal had no jurisdiction to hear and determine Mr Hall’s application as ICAC’s response to Mr Hall’s FOI request was not a decision that was reviewable under section 53 of the FOI Act.

5 On 3 October 2008, I made a tentative decision on the papers that had been filed. That decision and my reasons for decision were published: see Hall v Independent Commission Against Corruption [2008] NSWADT 271.

6 At [43], in the conclusion of these published reasons for decision, I indicated that, subject to being provided with a copy of the report Mr Hall had sought access to, I had tentatively formed a view that the submissions of the ICAC were correct. As the content of the report Mr Hall had sought access to formed the factual basis underlying the ICAC submissions, for completeness, I made an order that the ICAC provide the Tribunal, on a confidential basis, with a copy of this report on or before 10 October 2008.

7 In accordance with that order, under the cover of a letter, on 9 October 2008, the solicitor acting on behalf of the ICAC provided the Tribunal, on a confidential basis, with a copy of that report. The covering letter was not confidential and it is noted that a copy was forwarded to Mr Hall. The letter noted that the report was being provided to the Tribunal pursuant to a direction of the Commissioner under section 111 of the Independent Commission Against Corruption Act 1988 and that it was to be provided on a confidential basis for the purpose of determining this application.

8 I have considered the content of the report and I am satisfied that this report came into existence for the purpose of the ICAC’s ‘corruption prevention, complaint handling, investigative or reporting’ functions as set out in Schedule 2 of the FOI Act. Accordingly, I find that in regard to Mr Hall’s FOI request, the ICAC is exempt from the operation of the FOI Act by reason of section 9 of that Act. On this basis I also find that the Tribunal has no jurisdiction to hear and determine Mr Hall’s application and that the application should be dismissed.

9 For the reasons set out above and in my earlier decision (i.e. Hall v Independent Commission Against Corruption [2008] NSWADT 271) I order that Mr Hall’s application be dismissed.