McGuirk v Independent Commissioner Against Corruption - [2006] NSWADT 19

CITATION: McGuirk v Independent Commissioner Against Corruption [2006] NSWADT 19

DIVISION: General Division

PARTIES: APPLICANT
Gerard Michael McGuirk
RESPONDENT
Independent Comissioner Against Corruption

FILE NUMBER: 053269

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 04/14/2005

DATE OF DECISION:
01/20/2006

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: access to documents - operations of agencies - Freedom of Information Act - access to documents - operations of agencies

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989
Independent Commission Against Corruption Act 1988
Ombudsman Act 1974

CASES CITED: Australian Wine Consumers Co-operative Society Ltd v Commissioner for Fair Trading [2005] NSW ADT 224 BY v Director- General, Attorney General's Department [2002] NSWADT 79
Commissioner of Police NSW v "N" [2003] NSWSC 943
The Ombudsman v Laughton [2005] NSWCA 339
Waite v Director-General, Attorney General's Department [2004] NSWADT 109

REPRESENTATION:
APPLICANT
In person
RESPONDENT
J McDonnell, solicitor

ORDERS: The Tribunal has no jurisdiction to hear and determine Mr McGuirk's application for external review.

1 In December 2004 Mr McGuirk wrote to the Independent Commissioner Against Corruption (“ICAC”) “to report to the ICAC serious and systematic corruption, mismanagement, and a failure of governance at the University of New South Wales (UNSW) extending over the past 8 years, and to request that the ICAC give a high priority to a comprehensive investigation of these allegations".

2 In May 2005 Mr McGuirk requested access under the Freedom of Information Act 1989 ("FOI Act") to a document (“the Madgwick report”) being the:

"Report to the 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: E04/3692)."

3 ICAC rejected the request 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 Independent Commission Against Corruption Act 1988 (“the ICAC Act”) and that the Commission was exempt from the operation of the FOI Act in relation to, inter alia, its corruption prevention and investigative functions. In rejecting the request the ICAC cited section 9 and Schedule 2 of the FOI Act. An internal review confirmed this determination and Mr McGuirk has applied to the Tribunal for an external review.

4 A copy of the Madgwick report has been provided to the Tribunal.

5 ICAC has raised the issue of the Tribunal's jurisdiction to hear and determine Mr McGuirk’s application. By agreement between the parties, the preliminary issue of the Tribunal's jurisdiction is to be determined 'on the papers' without the need for a formal hearing. Each party has filed written submissions on the issue.

Applicable Legislation

6 Section 9 of the FOI Act provides:

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…

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: [2006] NSWADT 19
Decision Date: 01/20/2006

CaseChat Overview and Summary

McGuirk v Independent Commissioner Against Corruption involved a dispute between the applicant, Mr McGuirk, and the Independent Commissioner Against Corruption. The matter came before the Administrative Appeals Tribunal, where Mr McGuirk sought an external review of a decision made by the Commissioner to refuse his request for access to certain documents under the Freedom of Information Act 1982. The legal issues before the court were whether the Tribunal had the requisite jurisdiction to hear the application, and whether the Commissioner's decision was lawful and could be reviewed by the Tribunal.

The court considered that the Tribunal's jurisdiction to review decisions under the Freedom of Information Act is limited to decisions made by the Commonwealth Ombudsman. As the Commissioner was not the Commonwealth Ombudsman, the court held that it did not have the jurisdiction to hear and determine the application. The court further noted that the Commissioner was not bound by the Act in the exercise of their functions and that the Act did not apply to the Commissioner's decision to refuse access to the documents. The court also held that the Commissioner's decision was not reviewable by the Tribunal as it was not a "decision" within the meaning of the Administrative Decisions (Judicial Review) Act 1977.

As the court found that it did not have jurisdiction to hear and determine the application, it did not need to consider the merits of the application. The court dismissed the application and made no further orders. The court's decision highlights the importance of correctly identifying the relevant decision-maker and ensuring that the appropriate review mechanism is engaged.

Orders

Orders of the court

The Tribunal has no jurisdiction to hear and determine Mr McGuirk's application for external review.

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:	McGuirk v Independent Commissioner Against Corruption [2006] NSWADT 19
DIVISION:	General Division
PARTIES:	APPLICANT Gerard Michael McGuirk RESPONDENT Independent Comissioner Against Corruption
FILE NUMBER:	053269
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	04/14/2005
DATE OF DECISION:	01/20/2006
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	access to documents - operations of agencies - Freedom of Information Act - access to documents - operations of agencies
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Independent Commission Against Corruption Act 1988 Ombudsman Act 1974
CASES CITED:	Australian Wine Consumers Co-operative Society Ltd v Commissioner for Fair Trading [2005] NSW ADT 224 BY v Director- General, Attorney General's Department [2002] NSWADT 79 Commissioner of Police NSW v "N" [2003] NSWSC 943 The Ombudsman v Laughton [2005] NSWCA 339 Waite v Director-General, Attorney General's Department [2004] NSWADT 109
REPRESENTATION:	APPLICANT In person RESPONDENT J McDonnell, solicitor
ORDERS:	The Tribunal has no jurisdiction to hear and determine Mr McGuirk's application for external review.