McCabe v Electoral Commissioner, State Electoral Office - [2003] NSWADT 24

Set aside by Appeal:

CITATION: McCabe v Electoral Commissioner, State Electoral Office [2003] NSWADT 24

DIVISION: General Division

PARTIES: APPLICANT
David McCabe
RESPONDENT
Electoral Commissioner, State Electoral Office

FILE NUMBER: 023264

HEARING DATES: 17/01/2003

SUBMISSIONS CLOSED: 01/17/2003

DATE OF DECISION:
02/05/2003

BEFORE: Hennessy N - Magistrate (Deputy President)

APPLICATION: access to documents - law enforcement & public safety - access to documents - operation of agencies - Freedom of Information Act - access to documents - law enforcement & public safety - Freedom of Information Act - access to documents - operation of agencies

MATTER FOR DECISION: Principal

LEGISLATION CITED: Freedom of Information Act 1989
Administrative Decisions Tribunal Act 1997
Parliamentary Electorates and Election Act 1912

CASES CITED: Searle Australian Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111 at 113
Professional Officers Association, Amalgamated Union of NSW v Director General, Premier’s Department [2002] NSWADT 277
Save Our Suburbs (SOS) NSW Inc v Electoral Commissioner of NSW [2002] NSWSC 785
Attorney General’s Department v Cockcroft (1986) 10 FCR 180
Dykstra and Centrlink [2002] FCA 1442 at [25]
Secretary, Department of Employment, Workplace Relations and Small Business v The Staff Development and Training Centre Pty Ltd [2001] FCA 382
Secretary, Department of Workplace Relations and Small Business v Staff Development & Training Centre Pty Ltd [2001] FCA 1375

REPRESENTATION: APPLICANT
J Kirk, counsel
RESPONDENT
A Johnson, solicitor

ORDERS: 1. The agency's decision not to grant access to the document is set aside.; 2. Applicant to file an application for costs and any submissions in support, within 14 days of the date of this decision.; 3. Agency to file any submissions in reply within a further 14 days.; 4. Any applications for costs is to be decided "on the papers" pursuant to s 76 of the Administrative Decisions Tribunal Act 1997.

1 On 27 November 2002 Mr David McCabe applied to the Tribunal for the review of a decision made by the Electoral Commissioner, State Electoral Office, under the Freedom of Information Act 1989 (FOI Act). The decision was to refuse Mr McCabe access to a list of 300 randomly selected names and addresses of members of the Restore the Workers Rights Party (the Party.) The Electoral Commissioner had previously written to the 300 people to confirm that they were genuine members of the Party.

2 On 18 February 2002 Mr McCabe, who is the secretary of the Party, applied to the Electoral Commissioner to have the Party registered under the Parliamentary Electorates and Elections Act 1912 (PEE Act). To be eligible for registration, a party must have at least 750 members. (See s 66A(1) of the PEE Act.) Mr McCabe provided declarations from more than 750 people that they were members of the Party. Registration of a party has several advantages including entitlement to financial and other benefits.

3 Section 66G(2A) of the PEE Act empowers the Electoral Commissioner to conduct “tests or inquiries” to determine whether a party is eligible for registration. In order to determine whether…

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: [2003] NSWADT 24
Decision Date: 02/05/2003

CaseChat Overview and Summary

McCabe v Electoral Commissioner, State Electoral Office was a matter before the Administrative Appeals Tribunal (AAT) where the applicant, Mr McCabe, sought review of the Electoral Commissioner's decision to deny him access to certain documents. The dispute centered on the interpretation and application of the Freedom of Information (FOI) Act and the associated regulations, specifically in relation to the disclosure of information that the Commissioner deemed to be exempt from public access.

The central legal issues for the AAT to consider were whether the documents in question were exempt from disclosure under the FOI Act, and if not, whether the Commissioner's decision to withhold the information was reasonable and justified. Mr McCabe argued that the documents were not exempt and that the denial of access was an unreasonable exercise of the Commissioner's discretion.

The AAT found that the Commissioner's decision was not supported by the evidence and was therefore unreasonable. The Tribunal concluded that the documents did not fall within the exemptions provided by the FOI Act, and that the Commissioner had failed to adequately justify the withholding of the information. As a result, the AAT set aside the Commissioner's decision not to grant access to the documents, ordered that Mr McCabe could file an application for costs, and set a timeframe for both parties to submit relevant materials. The final orders included the annulment of the agency's decision, a directive for Mr McCabe to submit his application for costs within 14 days, and a corresponding timeframe for the agency to respond. The AAT also noted that any costs application would be determined on the papers in accordance with the relevant statutory provisions.

Orders

Orders of the court

1. The agency's decision not to grant access to the document is set aside.; 2. Applicant to file an application for costs and any submissions in support, within 14 days of the date of this decision.; 3. Agency to file any submissions in reply within a further 14 days.; 4. Any applications for costs is to be decided "on the papers" pursuant to s 76 of the Administrative Decisions Tribunal Act 1997.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	McCabe v Electoral Commissioner, State Electoral Office [2003] NSWADT 24
DIVISION:	General Division
PARTIES:	APPLICANT David McCabe RESPONDENT Electoral Commissioner, State Electoral Office
FILE NUMBER:	023264
HEARING DATES:	17/01/2003
SUBMISSIONS CLOSED:	01/17/2003
DATE OF DECISION:	02/05/2003
BEFORE:	Hennessy N - Magistrate (Deputy President)
APPLICATION:	access to documents - law enforcement & public safety - access to documents - operation of agencies - Freedom of Information Act - access to documents - law enforcement & public safety - Freedom of Information Act - access to documents - operation of agencies
MATTER FOR DECISION:	Principal
LEGISLATION CITED:	Freedom of Information Act 1989 Administrative Decisions Tribunal Act 1997 Parliamentary Electorates and Election Act 1912
CASES CITED:	Searle Australian Pty Ltd v Public Interest Advocacy Centre (1992) 36 FCR 111 at 113 Professional Officers Association, Amalgamated Union of NSW v Director General, Premier’s Department [2002] NSWADT 277 Save Our Suburbs (SOS) NSW Inc v Electoral Commissioner of NSW [2002] NSWSC 785 Attorney General’s Department v Cockcroft (1986) 10 FCR 180 Dykstra and Centrlink [2002] FCA 1442 at [25] Secretary, Department of Employment, Workplace Relations and Small Business v The Staff Development and Training Centre Pty Ltd [2001] FCA 382 Secretary, Department of Workplace Relations and Small Business v Staff Development & Training Centre Pty Ltd [2001] FCA 1375
REPRESENTATION:	APPLICANT J Kirk, counsel RESPONDENT A Johnson, solicitor
ORDERS:	1. The agency's decision not to grant access to the document is set aside.; 2. Applicant to file an application for costs and any submissions in support, within 14 days of the date of this decision.; 3. Agency to file any submissions in reply within a further 14 days.; 4. Any applications for costs is to be decided "on the papers" pursuant to s 76 of the Administrative Decisions Tribunal Act 1997.