McGuirk v Independent Commissioner Against Corruption

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…