McGuirk v Independent Commissioner Against Corruption

[2006] NSWADTAP 17

Set aside by Appeal: Set aside by Appeal on 2 March 2007: Independent Commission Against Corruption v Gerard Michael McGuirk [2007] NSWSC 147

Appeal Panel - Internal

CITATION:	Mc Guirk v Independent Commissioner Against Corruption [2006] NSWADTAP 17
PARTIES:	APPELLANT Gerard Michael McGuirk RESPONDENT Independent Commissioner Against Corruption
FILE NUMBER:	069007
HEARING DATES:	13/04/06
SUBMISSIONS CLOSED:	04/13/2006
DATE OF DECISION:	04/26/2006
BEFORE:	Hennessy N - Magistrate (Deputy President); Wilson R - Judicial Member; Blake C - Non Judicial Member
CATCHWORDS:	jurisdiction - statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	053269
DATE OF DECISION UNDER APPEAL:	01/20/2006
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
REPRESENTATION:	APPELLANT In person RESPONDENT J McDonnell, solicitor
ORDERS:	1. The Tribunal’s decision is set aside; 2. In substitution for that decision, the following decision is made; a) The Tribunal has jurisdiction to review a determination by ICAC not to give access to the Madgwick Report; b) The matter is remitted to the Tribunal in accordance with the following directions; Matter to be remitted to ICAC under s 65 of the Administrative Decisions Tribunal Act 1997 Act for reconsideration in accordance with the Appeal Panel’s findings.

Introduction

1 In May 2005, Mr McGuirk applied to the Independent Commissioner Against Corruption (ICAC) under the Freedom of Information Act 1989 (FOI Act) for a document known at the Madgwick Report. That Report was prepared by an officer of ICAC, Linda Madgwick, and was presented to the Operations Review Committee of ICAC. The Report was in response to a complaint Mr McGuirk made to ICAC about “serious and systemic corruption, mismanagement, and a failure of governance at the University of New South Wales”. Mr McGuirk’s reason for seeking access to the Madgwick Report was that he had evidence which suggested that the Report contained false and misleading statements. ICAC refused Mr McGuirk’s application asserting that “Reports made to the Operations Review Committee (ORC) are made for the purpose of enabling the ORC to undertake its functions under the ICAC Act” and that ICAC was “exempt from the operation of the FOI Act in relation to . . .its corruption prevention and investigative functions.” That decision was affirmed following an internal review.

2 Mr McGuirk applied to the Tribunal for a review of the decision. The initial issue for determination was whether the Tribunal had jurisdiction to review the decision of ICAC. The Tribunal decided that it did not have jurisdiction to undertake such a review. Mr McGuirk has appealed that decision. He is entitled to appeal on any question of law. With leave of the Appeal Panel, an appeal may extend to a review of the merits of the appealable decision: s 112 and s 113 of the Administrative Decisions Tribunal Act 1997. As the Tribunal did not make a decision on the merits, Mr McGuirk did not seek leave to appeal against the merits of the Tribunal’s decision.

Tribunal’s jurisdiction to review determinations under the FOI Act

3 A statutory tribunal, such as the Administrative Decisions Tribunal, has power to determine the limits of its own jurisdiction. Section 38 of the ADT Act gives the Tribunal jurisdiction to review a decision if an enactment (in this case the FOI Act) so provides. Section 53(1) of the FOI Act provides that

A person who is aggrieved by a determination made by an agency or Minister under section 24 or 43 may apply to the Tribunal for a review of the determination.

4 In accordance with this provision, three conditions need to be fulfilled for the Tribunal to have jurisdiction to review a determination, namely:

a) the determination must be made by an agency or Minister;

b) a determination must be under s 24 or 43; and

c) a person must be aggrieved by that determination.

5 There is no dispute that ICAC is an “agency” for the purposes of the FOI Act, or that if ICAC made a determination, Mr McGuirk is aggrieved by it. ICAC’s status as an agency derives from s 6 which defines an agency to mean “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.” (We note that the Tribunal’s Reasons named the respondent as the Independent Commissioner Against Corruption. Both parties agreed that the correct respondent is the Independent Commission Against Corruption.) The definition of “agency” in s 6 excludes “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.” (Emphasis added.) Since Schedule 2 only exempts ICAC in relation to its “corruption prevention, complaint handling, investigative and report functions” it remains within the definition of agency in s 6. (Compare, for example, the Child Death Review Team.) Consequently ICAC is an “agency” for the purposes of the FOI Act, including s 53.

6 The second requirement in s 53, and the one that is in dispute, is that ICAC has made a “determination” under s 24 or s 43. Section 43 is not relevant to these proceedings. ICAC submitted that it had not made a determination under s 24. ICAC’s response to Mr McGuirk’s application supports that contention. It says, in part:

One of the functions of the Operations Review Committee, as provided for by the Independent Commission Against Corruption Act, is to advise the Commissioner whether the Commission should investigate a complaint made under the Act or discontinue an investigation of such a complaint. Reports made to the Operations Review Committee are made for the purpose of enabling the Operations Review Committee to undertake its functions under the ICAC Act.

Commissioner reports to the Operations Review Committee relate to the Commission’s complaint handling and investigative functions.

The Commissioner is exempt from the operation of Freedom of Information Act in relation to, inter alia, its corruption prevention and investigative functions (see section 9 and Schedule 2 of the Freedom of Information Act). In these circumstances I have decided to reject your request.

7 Mr McDonnell, representing ICAC, submitted that because s 9 exempts ICAC from the operation of the FOI Act in relation to certain functions, it cannot make a determination under s 24 if the requested documents relate to those functions. The Tribunal adopted that view. Section 9 states that:

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.

8 Schedule 2 to the FOI Act lists ICAC in relation to “corruption prevention, complaint handling, investigative and report functions.” Mr McDonnell conceded that because ICAC is an agency, it is bound to comply with certain provisions of the FOI Act including those about dealing with an application for access (s 18), redirecting an application to another agency (s19), transferring an application (s 20) and requesting advance deposits (s 21).

9 The alternative view is that because ICAC is an “agency” and has received an application for access to documents from Mr McGuirk, s 24 requires it to consider that application and determine whether access is to be given or refused. Section 24(1) states that:

(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. must have be

10 The use of the word “shall” in s 24 indicates that it is mandatory for agencies to make a determination after considering an application for access to a document. Section 25 of the FOI Act lists the grounds on which an agency may refuse access to a document. The only relevant ground in relation to this case is s 25(1)(a) which allows an agency to refuse access to a document if it is an “exempt document”. That term is defined in s 6 to mean:

(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.

11 According to Mr McDonnell paragraph (b) is only applicable where an agency listed in Schedule 2 has given such a document to another agency that is not listed in Schedule 2. In that case the second agency would have power to make a determination that the document was an exempt document. However, where the agency which holds the document is a Schedule 2 agency, and the document relates to one or more of the functions listed in Schedule 2, then s 9 exempts that agency from the operation of the FOI Act and there is no power for that agency to make a determination under s 24. The Tribunal also adopted that view at [28]:

I note that the definition of ‘exempt document’ in section 6 of the FOI Act includes “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.” This provision would have application where the relevant document is held by an agency that is not exempt pursuant to section 9 of the FOI Act. I would agree with Mr McGuirk’s arguments in regard to the operation of the FOI Act if he had requested a copy of the Madgwick report from such an agency. However, in my view the provision has no application if the relevant document is held by an agency that is exempt pursuant to section 9 of the FOI Act as is the case in this matter.

12 The Tribunal decided, without any reference to the definition of agency in s 6, that the initial question for consideration was “whether the application for access to a document attracts the application of s 9.” (See Reasons for Decision at [27].) Section 9 is not the starting point when considering whether the Tribunal has jurisdiction. The starting point when considering that question is s 38 of the ADT Act and s 53 of the FOI Act.

13 Section 9 is a general provision which exempts ICAC from the operation of the FOI Act in relation to certain functions. However, because ICAC is an “agency”, it is subject to every provision in the FOI Act that relates to agencies. Section 24 is one of those provisions. The use of the word “shall” in s 24 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 functions in relation to which ICAC is, by virtue of section 9, exempt from the operation of this Act.

14 As each of the requirements in s 53 has been fulfilled, the Tribunal has jurisdiction to review ICAC’s determination. The Tribunal erred in deciding to the contrary. It also follows that other Tribunal decisions that commenced their consideration of jurisdiction with s 9, are also incorrect. (See, for example, Waite v Director General, Attorney General’s Department [2004] NSWADT 109.)

Orders

1. The Tribunal’s decision is set aside.

2. In substitution for that decision, the following decision is made:

a) The Tribunal has jurisdiction to review a determination by ICAC not to give access to the Madgwick Report.

b) The matter is remitted to the Tribunal in accordance with the following directions:

Matter to be remitted to ICAC under s 65 of the Administrative Decisions Tribunal Act 1997 Act for reconsideration in accordance with the Appeal Panel’s findings.