Independent Commission Against Corruption v McGuirk - [2007] NSWSC 147

CITATION: Independent Commission Against Corruption v Gerard Michael McGuirk [2007] NSWSC 147

HEARING DATE(S): 19 February 2007

JUDGMENT DATE :
2 March 2007

JUDGMENT OF: Simpson J

DECISION: 1. application for leave to appeal granted; 2. appeal allowed; 3. orders made by the Appeal Panel of the Administrative Decisions Tribunal on 16 April 2006 set aside; 4. orders made by Administrative Decisions Tribunal of 20 January 2006 restored.

CATCHWORDS: ADMINISTRATIVE LAW - application for leave to appeal against order of Administrative Decisions Tribunal - access to document - Freedom of Information Act 1989 - objects of FOI Act - entitlement to access to documents - limitations on right to access - exempt documents - exemption from operation of FOI Act with respect to certain functions - document sought relates to corruption prevention, complaint handling, investigative and report functions - Operations Review Committee - ICAC exempt in relation to document sought

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997, s38, s112(3)(a), s119, s119(1A),
Freedom of Information Act 1989, Schedule 2, s5, s6, s9, s16, s17, s24, s25, s34, s38, s53
Independent Commission Against Corruption Act 1988, Part 6, s59(1)

CASES CITED: McGuirk v ICAC [2005] NSW ADT 19
McGuirk v ICAC (GD) [2006] NSWADTAP 17

PARTIES: Independent Commission Against Corruption - Plaintiff
Gerard Michael McGuirk - Defendant

FILE NUMBER(S): SC 2006/30070

COUNSEL: MJ Leeming - Plaintiff

SOLICITORS: IV Knight - Plaintiff
Defendant in person

LOWER COURT JURISDICTION: Administrative Decisions Tribunal

LOWER COURT DATE OF DECISION: 20 January 2006
16 April 2006

LOWER COURT MEDIUM NEUTRAL CITATION: McGuirk v ICAC [2005] NSW ADT 19; McGuirk v ICAC (GD) [2006] NSWADTAP 17

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

SIMPSON J

Friday 2 March 2007

2006/30070
Independent Commission Against Corruption
v Gerard Michael McGuirk
JUDGMENT

1 HER HONOUR: By summons filed on 23 May 2006 the plaintiff (the Independent Commission Against Corruption, to which I will refer as “ICAC”) seeks, pursuant to s119 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”), leave to appeal against the decision of the Appeal Panel of the Administrative Decisions Tribunal (“the ADT”) delivered on 16 April 2006 (McGuirk v ICAC (wrongly titled “Independent Commissioner Against Corruption”) (GD) [2006] NSWADTAP 17. Leave is required because the decision is of an interlocutory nature: s119(1A). The application concerns the construction and effect of s9 of the Freedom of Information Act 1989 (“the FOI Act”).

Background

2 The proceedings have their origin in a request by the present defendant, Gerard Michael McGuirk, dated 31 May 2005, to ICAC, for access, under the FOI Act, to a document he identified as:

“Report to ICAC Operations Review Committee in regard to the matters reported to the ICAC by Gerard Michael McGuirk, which is referred to in the letter of Ms Linda Madgwick to Mr McGuirk dated 26 May 2005 (ICAC ref: EO4/36942).”

“The Madgwick Report” as it came to be known, was made in respect of a complaint…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWSC 147
Decision Date: 2 March 2007

CaseChat Overview and Summary

The Independent Commission Against Corruption (ICAC) sought leave to appeal against a decision of the Administrative Decisions Tribunal (ADT) which had dismissed an application for access to a document under the Freedom of Information Act 1989. The document in question was an internal review of the Operations Review Committee, a body within ICAC. ICAC argued that the ADT had erred in finding that the document was not exempt from disclosure under the Act. The legal issues before the court were whether the document was exempt from disclosure under the FOI Act, and whether the ADT had jurisdiction to make an order for access to the document.

The court held that the document was exempt from disclosure under the FOI Act. The court found that the document related to the prevention, complaint handling, investigative and report functions of ICAC, which were exempt functions under the Act. The court also found that the ADT did not have jurisdiction to make an order for access to the document because the exemption applied. The court noted that the objects of the FOI Act were to ensure open and accountable government, but also to protect privacy and other legitimate interests. The court held that the exemption for exempt functions was necessary to protect the integrity of ICAC's functions and to prevent interference with its operations.

ICAC's application for leave to appeal was dismissed. The court found that there was no arguable ground of appeal, as the ADT's decision was based on a correct application of the law to the facts. The court noted that the ADT had considered all relevant factors and had made a reasonable decision. The court also noted that ICAC had not demonstrated that the ADT had made an error of law or had failed to take into account relevant considerations.

The court's decision reinforces the importance of protecting the integrity of agencies responsible for preventing and investigating corruption. The court found that the exemption for exempt functions was necessary to ensure that these agencies could carry out their functions effectively and without interference. The court also emphasised the need for careful consideration of the objects of the FOI Act, and the balance between open and accountable government and the protection of privacy and other legitimate interests. The decision may have implications for other agencies responsible for sensitive functions, and for the interpretation of the exemption for exempt functions under the FOI Act.

Orders