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 made by Mr McGuirk to ICAC, in December 2004, alleging “serious and systemic corruption, mismanagement and a failure of governance” at a metropolitan university.

3 On 14 June 2005 Mr Roy Waldon, signing as “A/Solicitor to the Commission” notified Mr McGuirk that he had determined to refuse the request. He gave as his reason that the reports to the Operations Review Committee (“ORC”) are made for the purpose of enabling the ORC to undertake its function under the Independent Commission Against Corruption Act 1988 (“the ICAC Act”) and that ICAC was, by operation of s9 and Schedule 2 of the FOI Act, exempt from production of such documents.

4 On 1 July 2005, pursuant to s34 of the FOI Act Mr McGuirk sought internal review of the decision. On 14 July 2005 the ICAC Commissioner, Mr Jerrold Cripps QC, responded, notifying Mr McGuirk that the original decision to refuse access was confirmed, for the reasons originally given.

5 Pursuant to s53 of the FOI Act Mr McGuirk applied to the ADT for a review of the determination. That review was conducted “on the papers”, by Mr S Montgomery, Judicial Member, who gave his decision on 20 January 2006. Mr Montgomery held that ICAC was exempt from the operation of the ICAC Act in respect of the document in question, and that the ADT, accordingly, had no jurisdiction to hear and determine his application (McGuirk v ICAC (again wrongly titled “Independent Commissioner Against Corruption”) [2005] NSW ADT 19).

6 Pursuant to s112(3)(a) of the ADT Act, Mr McGuirk appealed against this decision to an Appeal Panel of the ADT. A decision in respect of that appeal was given on 26 April 2006 and is the subject of the present application for leave to appeal. The Appeal Panel held that Mr Montgomery was wrong to conclude that the ADT lacked the jurisdiction to determine Mr McGuirk’s appeal; that ICAC was obliged, under s24 of the FOI Act, to consider Mr McGuirk’s application for access to the document and to determine whether access was to be given; and that, on ICAC’s refusal to grant access, the ADT had jurisdiction, under s53 of the FOI Act, to review that determination. The Appeal Panel set aside Mr Montgomery’s order, declared that the ADT had the necessary jurisdiction, and remitted the matter to the ADT for reconsideration of the appeal in accordance with its findings. It is that decision that is the subject of the present appeal.

7 The appeal turns on a very narrow point: the proper construction and effect of s9 of the FOI Act. It is convenient to refer to certain statutory provisions. I do not propose to set them all out in full; a paraphrase of the relevant sections will here suffice. Those that are most material will be appended, in full, to this judgment.

8 The relevant legislation is the FOI Act, the ICAC Act and the ADT Act.

9 The objects of the FOI Act are set out explicitly in s5(1), as being to extend, so far as possible, the availability of government information to the public, and to ensure the accuracy of that information. S5(2) specifies the means by which those objects are to be achieved, recognising the need for some restriction, by reason of the needs of proper administration.

10 Perhaps the heart of the FOI Act is contained in s16, which is in Part 3 thereof, and which confers on individuals a legally enforceable right to be given access to an agency’s documents in accordance with the FOI Act. (“Agency” is defined in s6 in such a way as to include ICAC.) S17 sets out the requirements of an application. Subsequent provisions in Part 3 deal with the mechanics of dealing with applications. Not surprisingly, other provisions in the FOI Act limit the extent of the operation of s16, which is, it can be seen, in very broad terms.

11 By s24(1) an agency is obliged to consider an application for access to a document, and to determine (inter alia) whether access is to be given or refused. S25 sets out the circumstances in which an agency may refuse access. Relevantly to the present appeal, these circumstances include that the document is “an exempt document”. Exempt documents are identified in Schedule 1, but, more particularly for present purposes, (by s6) include documents containing matter relating to functions in relation to which a body or office (which includes ICAC) is, by virtue of s9 (see below), exempt from the operation of the Act. S34 confers a right of internal review on an applicant who has been refused access or is otherwise aggrieved by a determination. S53 confers a right of appeal to the ADT following internal review. S38 of the ADT Act confers (if it is further necessary) jurisdiction on the ADT to review a decision to which s53 of the FOI Act applies. S9 of and Schedule 2 the FOI Act exempt ICAC from the operations of the FOI Act in relation to such of its functions as are specified or described in Schedule 2. Because of its central importance to this judgment, I set out s9 in full:

“ 9 Certain bodies etc exempt from operation of Act

Any body or office specified or described in Schedule 2 is, in relation to such of the functions of the body or office as are so specified or described, exempt from the operation of this Act.”

12 Schedule 2 identifies exempt bodies and offices (including ICAC) and specifies the functions in relation to which they are exempt from the operation of the FOI Act. Relevantly, ICAC is exempt from that operation in relation to:

“corruption prevention, complaint handling, investigative and report functions”.

13 The Madgwick Report was a report made for ICAC purposes, following Mr McGuirk’s complaint of December 2004, pursuant to the provisions of Part 6 (since repealed, but in operation at the time of Mr McGuirk’s application, and still relevant for the purposes of determining this appeal) of the ICAC Act.

14 By Part 6 of the ICAC Act an ORC was constituted. It functions were specified in s59(1) and included advising the ICAC Commissioner whether the Commission should investigate a complaint made under the ICAC Act or discontinue an investigation of such a complaint.

15 It was the view of Mr Montgomery that the Madgwick Report was a report in relation to corruption prevention, complaint handling, investigative and report functions within the meaning of Schedule 2; s9 of the FOI Act therefore applied to exempt ICAC from the operation of the Act. (That the Madgwick Report was of that character was not in dispute. What was in dispute was the consequence of that finding.)

16 The Appeal Panel took a different view of the application and the effect of s9. It made some criticism of Mr Montgomery for making no reference to the definition of “agency” in s6 of the FOI Act, and held that he was wrong in identifying the initial question for consideration as:

“whether the application for access to a document attracts the application of s9”.

The Appeal Panel held that the correct starting point in considering jurisdiction of the ADT is s38 of the ADT Act and s53 of the FOI Act.

17 The Appeal Panel then held:

“S9 is a general provision which exempts ICAC from the operation of the FOI Act in relation to certain functions. However, because ICAC is an ‘agencies’ it is subject to every provision in the FOI Act that relates to agency . S24 is one of those provisions. The use of the word ‘shall’ in s24 indicates that an agency is under a duty to make a determination after considering an application for access to a document. ICAC has received an application for access to the Madgwick Report. As an agency, it must determine whether access to that document is to be given or refused. One ground of refusal is that it is an exempt document. Exempt documents include a document that contains matter relating to function in relation to which ICAC is, by virtue of s9, exempt from the operation of this Act.” (emphasis added)

18 The Appeal Panel therefore held that, as all requirements of s53 of the FOI Act had been fulfilled, the ADT had jurisdiction to review ICAC’s determination, and the ADT erred in deciding to the contrary, and made the orders to which I have referred above.

19 If the Appeal Panel were correct then any body, office or agency that received a s17 application would be obliged, even where it determined that the document(s) in question were of the kind specified in Schedule 2, nevertheless to consider and determine the application under s24.

That is not in my opinion, consistent with the terms of s9. What s9 does is (in relation to the functions specified in Schedule 2) exempt the body or office from “the operation of [the FOI] Act”. That is, once the documents are categorised as s9 documents, the FOI Act has no further application to that body or office. That includes s24.

20 I was initially concerned that such a conclusion might mean that a ruling that the documents sought were s9/Schedule 2 documents was unreviewable. But that is not the case. As I read s53, it would be open to the applicant to challenge that determination in the ADT. But here Mr McGuirk accepted that the document was of the relevant character.

21 Accordingly, ICAC was exempt from the operation of s24. It was not, therefore, open to the ADT Appeal Panel to direct ACAC to consider and determine the application. It had no jurisdiction to make that order. It is therefore necessary to set aside the orders of the Appeal Panel, and reinstate the order of the ADT (General Division).

22 The orders I make are:

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.

**********

Freedom of Information Act 1989 No 5

5 Objects

(1) The objects of this Act are to extend, as far as possible, the rights of the public:
(a) to obtain access to information held by the Government, and
(b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading.
(2) The means by which it is intended that these objects are to be achieved are:
(a) by ensuring that information concerning the operations of the Government (including, in particular, information concerning the rules and practices followed by the Government in its dealings with members of the public) is made available to the public, and
(b) by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government, and
(c) by enabling each member of the public to apply for the amendment of such of the Government’s records concerning his or her personal affairs as are incomplete, incorrect, out of date or misleading.
…

6 Definitions

(1) In this Act:

agency means a Government Department, public authority, local authority or public office, but does not include a body or office that is, by virtue of section 9, exempt from the operation of this Act in relation to all of its functions.

…

exempt document means:

(a) a document referred to in any one or more of the provisions of Schedule 1, or
(b) a document that contains matter relating to functions in relation to which a body or office is, by virtue of section 9, exempt from the operation of this Act.

…

9 Certain bodies etc exempt from operation of Act

Any body or office specified or described in Schedule 2 is, in relation to such of the functions of the body or office as are so specified or described, exempt from the operation of this Act.

…

16 Right of access to agencies’ documents

(1) A person has a legally enforceable right to be given access to an agency’s documents in accordance with this Act.
(2) (Repealed)

…

24 Determination of applications

(1) After considering an application for access to a document, an agency shall determine:
(a) whether access to the document is to be given (whether immediately or subject to deferral) or refused, and
(b) if access to the document is to be given—any charge payable in respect of the giving of access, and
(c) any charge payable for dealing with the application.


…

25 Refusal of access

(1) An agency may refuse access to a document:
(a) if it is an exempt document, or
(a1) if the work involved in dealing with the application for access to the document would, if carried out, substantially and unreasonably divert the agency’s resources away from their use by the agency in the exercise of its functions, or
(b) if it is a document that is available for inspection at that or some other agency (whether as part of a public register or otherwise) in accordance with Part 2, or in accordance with a legislative instrument other than this Act, whether or not inspection of the document is subject to a fee or charge, or
(b1) if it is a document that is available from, or available for inspection at, that agency, free of charge, in accordance with that agency’s policies and practices, or
(c) if it is a document that is usually available for purchase, or
(d) if it is a document that genuinely forms part of the library material held by the agency.
(e) (Repealed)
(2) (Repealed)
(3) An agency shall refuse access to a restricted document that is the subject of a Ministerial certificate.
(4) An agency shall not refuse access to an exempt document (including a restricted document that is the subject of a Ministerial certificate):
(a) if it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and
(b) if it appears to the agency (whether from the terms of the application or after consultation with the applicant) that the applicant would wish to be given access to such a copy.
(5) Subsection (1) (a1) does not permit an agency to refuse access to a document without first endeavouring to assist the applicant to amend the application so that the work involved in dealing with it would, if carried out, no longer substantially and unreasonably divert the agency’s resources away from their use by the agency in the exercise of its functions.