McGuirk v University of New South Wales
[2008] NSWADTAP 41
•21 July 2008
Appeal Panel - Internal
CITATION: McGuirk v University of New South Wales [2008] NSWADTAP 41 PARTIES: APPELLANT
(Gerard) Michael McGuirkRESPONDENT
University of New South WalesCROSS APPELLANT
CROSS RESPONDENT
University of New South Wales
(Gerard) Michael McGuirkFILE NUMBER: 079054; 079056 HEARING DATES: 6 March 2008 SUBMISSIONS CLOSED: 6 March 2008
DATE OF DECISION:
21 July 2008BEFORE: Hennessy N - Magistrate (Deputy President); Wilson R - Judicial Member; Bolt M - Non Judicial Member DECISION UNDER APPEAL: McGuirk v University of New South Wales [2007] NSWADT 204 FILE NUMBER UNDER APPEAL: 053107 DATE OF DECISION UNDER APPEAL: 09/06/2007 LEGISLATION CITED: Freedom of Information Act 1989
Protected Disclosures Act 1994CASES CITED: University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362
Council of the New South Wales Bar Association v Li, [2005] NSWCA 415
Howell v Macquarie University [2008] NSWCA 26
McGuirk v University of New South Wales (GD) [2008] NSWADTAP 17
University of New South Wales v McGuirk (No 2) [2008] NSWADTAP 8
Proust v Blake (1989) 17 NSWLR 267
Blake v Norris (1990) 20 NSWLR 300
Doran Constructions (In Liq) [2002] NSWSC 215
Killen v Lane [1983] 1 NSWLR 171
McGuirk v University of New South Wales [2008] NSWADTAP 17
University of New South Wales v McGuirk [2006] NSW ADTAP 38
Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456
Building Professionals Board v Hans [2008] NSWADTAP 13
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269-70
Pettitt v Dunkley [1971] 1 NSWLR 376
Public Service Board of New South Wales v Osmond [1986] HCA 7; (1986) 159 CLR 656
Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430
Absolon v NSW TAFE [1999] NSWCA 311REPRESENTATION: No Appearance
P Singleton, counselORDERS: File 079054
1. Leave to extend Mr McGuirk’s appeal to the merits of the Tribunal’s decision is refused.
2. Mr McGuirk’s appeal is dismissed.
3. Mr McGuirk’s application for costs is refused
File 079056
1. Leave to extend the University of New South Wales’ appeal to the merits of the Tribunal’s decision is refused.
2. The appeal by the University of New South Wales is dismissed.
Introduction
1 This decision relates to two appeals, one lodged by Mr McGuirk (File 079056) and one lodged by the University of New South Wales (File 079054). Both are appeals from a decision made by the Tribunal on 6 September 2007. That decision was in response to an application made by Mr McGuirk for a document under the Freedom of Information Act 1989 (FOI Act). The document was a report of the St James Ethics Centre dated December 2004 (the Report). A later version of the Report, dated April 2005, has been published with some deletions, on the University’s website.
2 One of Mr McGuirk’s reasons for requesting access to the earlier version of the Report was to ascertain whether it was a draft or whether it was a final version. Mr McGuirk’s suspicion was that the executive of the University sent the first Report back to the St James Ethics Centre to be amended.
3 The background to these proceedings is that four people complained to the University about the conduct of an academic employed by the University, Professor Bruce Hall, during the period from September 2001 to October 2002. The complaints included allegations of corrupt conduct, maladministration and serious and substantial waste of public money by the University. The University formed the view that at least some of those complaints constituted “protected disclosures” under the Protected Disclosures Act 1994. The University investigated the complaints. Those investigations led to the writing of several reports by professors of the University. One such report, the Hungerford Report, identified 78 separate allegations against Professor Hall. In February 2004, the University commissioned the St James Ethics Centre to review the way the University had dealt with the complaints. In December 2004, the St James Ethics Centre sent the University a draft report. That Report is the subject of these proceedings.
Legislative framework
4 Under section 16(1) of the FOI Act “[a] person has a legally enforceable right to be given access to an agency’s documents in accordance with this Act.” Following an application for access to documents, an agency must determine whether access is to be given or refused, and any charge payable for dealing with the application: s 24. An agency may refuse access to a document if it is an exempt document: s25(1)(a). An exempt document includes a document referred to in any one or more of the provisions of Schedule 1: FOI Act, s 6. Clause 20(1)(d) of Schedule 1 states that:
- (1) A document is an exempt document if it contains matter the disclosure of which would disclose:
(d) matter relating to a protected disclosure within the meaning of the Protected Disclosures Act 1994
5 An agency is not to refuse access to an exempt document if it is practicable to give access to a copy of the document from which the exempt matter has been deleted, and if it appears to the agency that the applicant would wish to be given access to such a copy: s 25(4).
6 The role of the Tribunal when reviewing the decision of an agency not to exercise its discretion to give access to an exempt document is to “ . . . decide what the correct and preferable decision is having regard to the material then before it": ADT Act, section 63(1). The agency has a discretion to give access to an exempt document by virtue of section 25(1)(a) FOI Act, which states that:
- (1) An agency may refuse access to a document:
(a) if it is an exempt document
7 In University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362 Nicholas J decided at [102] that:
- In my opinion section 63 ADT Act provides the Tribunal with the discretion to order access to be given to documents, which are exempt documents under the FOI Act if it decides, that to do so is the correct and preferable decision with regard to the material then before it.
8 The Tribunal decided that at least one of the complaints to the University was a protected disclosure and that the Report contained matter “relating to” that disclosure. Consequently the Report was an exempt document. The Tribunal went on to acknowledge that it has a discretion to release exempt documents and decided that it was in the public interest to release the Report. However, the Tribunal took the view that all references in the Report to the people who had complained about the actions of Professor Hall and the substance of their complaints should be removed. The matter was remitted to the University for reconsideration, with a recommendation to that effect. The Tribunal’s orders were that:
- 1. The decision under review is set aside.
2. Pursuant to section 63(3)(d) of the Administrative Decisions Tribunal Act 1997, the matter is remitted to the University for reconsideration with the recommendation that the Report is to be released to Mr McGuirk. With the exception of those parts of the Report which identifies either the complainants or the complaints made by the complainants in regard to the actions of Professor Bruce Hall, the Report is to be released in full.
9 Mr McGuirk did not appear on 6 March 2008, the date set down for the hearing of these appeals. Correspondence between Mr McGuirk and the Tribunal and between the University and Mr McGuirk was admitted into evidence. (Exhibits A and B.) Despite Mr McGuirk’s non-appearance, the Appeal Panel decided to hear and determine the appeals. The main reason for doing so was that Mr McGuirk had not applied for an adjournment despite being advised by the Registrar that if he was unable to attend the hearing, he should make such an application. Similar advice was given to him by the University in their letter of 4 March 2008. The Appeal Panel gave short oral reasons for proceeding with the appeals in Mr McGuirk’s absence.
10 In his Notice of Appeal, Mr McGuirk briefly identified 17 questions of law. We are familiar with some of the grounds of appeal as Mr McGuirk has put forward similar grounds in previous proceedings. Other grounds of appeal were based on submissions which the Tribunal had rejected. We have done our best to understand Mr McGuirk’s remaining grounds of appeal, however in some cases the written submissions do not provide sufficient information for us to identify the question of law to which Mr McGuirk is referring. Each ground is addressed in turn below.
11 The Tribunal erred by failing to comply with section 80(3) of the ADT Act. Section 80(3) states that:
- If the Tribunal reserves its decision, it must give the reasons for its decision either orally or in writing within six months (or such other lesser period as may be specified by the rules of the Tribunal generally or for that class of matter) of the date on which it reserved its decision
12 The Tribunal hearing took place on 9 May 2006. Submissions closed on 23 March 2007 and the decision was handed down on 6 September 2007. As the submissions did not close until 23 March 2007 the Tribunal did not exceed the six-month time limit. Even if the Tribunal had exceeded the time limit, that would not constitute an error of law because failure to comply with the time limit does not affect the validity of a reserved decision: ADT Act, s 80(4).
13 The Tribunal erred by failing to comply with section 73(5) of the ADT Act. Section 73(5) contains eight paragraphs. Mr McGuirk did not specify which of these paragraphs the Tribunal had failed to comply with. It may be s 73(5)(b). If so, we have dealt with Mr McGuirk’s submission in relation to that provision at [18] – [21].
14 The Tribunal erred by failing to give effect to the objects of the FOI Act and the ADT Act. Mr McGuirk did not specify the objects which the Tribunal failed to give effect to or how such a failure constitutes an error of law.
15 The Tribunal erred at law by failing to follow previous decisions of the Appeal Panel. Mr McGuirk did not identify which decisions the Tribunal failed to follow or why such a failure amounts to an error of law.
16 The Tribunal erred by failing to find that, where there have been two deemed refusals by an agency to refuse access to the documents sought that, in the absence of good reason to the contrary, the Tribunal should order the release of such documents. The role of the Tribunal when reviewing the decision of an agency, whether that decision is a deemed decision or a substantive decision, is to ". . . decide what the correct and preferable decision is having regard to the material then before it": ADT Act, section 63(1). The onus is on the agency under s 61 of the FOI Act, to establish that its determination is justified. But that does not mean that the Tribunal should assume, in the absence of good reason to the contrary, that the correct decision is to release a document where there has been one or more deemed refusals to give access to the document. There is simply no legislative or other basis for such an assumption.
17 The Tribunal erred by finding, in the absence of any evidence of bad faith on his part, that his failure to pay a so-called ‘advance deposit’ of $82.50 justified the University in initiating and/or contesting proceedings before the Tribunal. This submission relates to a question which was not before the Tribunal.
18 The Tribunal erred by relying on hearsay evidence rather than fulfilling its obligations under section 73(5)(b) of the ADT Act to ensure that all relevant material was disclosed to the Tribunal in order to enable it to determine the relevant facts in issue in proceedings. Section 73(5)(b) states that, “The Tribunal is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings.” As far as we are aware, the meaning of that provision has not been the subject of judicial comment. In Council of the New South Wales Bar Association v Li, [2005] NSWCA 415 at [22] the Court of Appeal made the following general comment on s 73:
- As can be seen, s 73 contains a wide range of procedural powers and obligations which are as pertinent to a hearing of professional conduct cases as they are to other aspects of the Tribunal's jurisdiction. Many, but not all, would be implied or permitted as a matter of law. Nevertheless, their specification is apt as part of a comprehensive statement of the Tribunal's procedure.
19 Mr McGuirk did not identify in his grounds of appeal, the material that he says the Tribunal should have ensured was disclosed. However, on the basis of the transcript of the proceedings in the Tribunal, one document he may have had in mind was the Boland Report. Mr McGuirk submitted to the Tribunal that:
- The university published the names of the three complainants on its website and this evidence is in front of you in another matter. It’s the so-called Boland report. So it’s before you Mr Montgomery, not here but you have it in front of you and in accordance with your ruling in the other matter please take it into consideration. The names are published on the university website. April 16 2003, I think it was, the Boland report. The university has argued all the time it complied with the Protected Disclosures Act, it’s supposed to protect the confidentiality of the complainants, it published them on the website April of 2004.
20 Mr McGuirk was inviting the Tribunal to take the Boland report into account and presumably to accept that that report had been published on the University’s website in 2003 or 2004.
21 The Tribunal is required to determine an application on the basis of the material "then before it": ADT Act, s 63(1). Material is not "then before" the Tribunal if it is material filed in other proceedings. The material on which a party seeks to rely must be filed with the Tribunal and served on the other party. It would be a breach of procedural fairness for the Tribunal to take into account material that was not before it. We are not aware of any other material to which Mr McGuirk may have been referring in this ground of appeal. As the Tribunal is not bound by the rules of evidence, relying on hearsay evidence is not an error of law: ADT Act, s 73(2). In any case, we are not aware of the hearsay evidence to which Mr McGuirk is referring.
22 The Tribunal erred by failing to give effect not only to the key provisions of the Protected Disclosures Act 1994 but also to the intent of the New South Wales Parliament when it passed that Act. Mr McGuirk did not specify the provisions of the Protected Disclosures Act to which he was referring, or his understanding of the intent of parliament when the Act was passed.
23 The Tribunal erred at law, as a matter of procedural fairness, by failing to provide Mr McGuirk with a copy of the confidential submissions made by the University and he was denied the opportunity to respond to those submissions. The University made confidential submissions to the Tribunal in support of its argument that the Report relates to a protected disclosure and is therefore exempt. Mr McGuirk does not indicate that he objected to the receipt of those confidential submissions. Pursuant to s 55 of the FOI Act, the Tribunal may receive confidential submissions:
- In determining a review application, the Tribunal:
(a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter, and
(b) is to, where in the opinion of the Tribunal it is necessary to do so in order to prevent the disclosure of any exempt matter, receive evidence and hear argument in the absence of the public, the review applicant and the applicant’s representative.
24 This ground of appeal may be disposed of shortly by reference to the Court of Appeal’s decision in Howell v Macquarie University [2008] NSWCA 26. At [76] Campbell J (Spigelman CJ, and Bell JJA agreeing) said that:
- The requirement in s 55 FOI Act for the Tribunal to ensure that it does not disclose any exempt matter sets the frame within which proceedings in the Tribunal must occur. When Parliament has required that exempt matter not be disclosed, the consequences of not disclosing it could not, in themselves, be a breach of a legal requirement of procedural fairness.
25 The Tribunal erred by applying the incorrect test as to the meaning of the phrase “relates to” in the context of the Protected Disclosures Act 1994 and the FOI Act. At [34] of its decision, the Tribunal stated that:
- I also accept the University’s argument with respect to the necessary degree of proximity in order to establish a protected disclosure. I agree that the expression "matter relating to a protected disclosure" is intended to be given a wide interpretation.
26 Giving the phrase a “wide interpretation” is consistent with the Appeal Panel’s decision in McGuirk v University of New South Wales (GD) [2008] NSWADTAP 17 (3 April 2008). In that case the Appeal Panel found that the Tribunal had erred when it said that the phrase “relating to a protected disclosure" should be given its “widest possible meaning”. The Appeal Panel said that the phrase should be given “a wide meaning” but that the context will determine the matters to which it extends. We adopt the Appeal Panel’s reasoning for that conclusion set out at [20] and [21]:
- Conclusion . In The Workers’ Compensation Board of Queensland v Technical Products Proprietary Limited (1988) 165 CLR 642 Wilson and Gaudron JJ referred at 646, to decisions where it was said that the phrase "in respect of" should have "the widest possible meaning of any expression intended to convey some connection or relation between the two subject-matters to which the words refer". Their Honours regarded that interpretation of the phrase to be "perhaps somewhat extravagant". Deane, Dawson and Toohey JJ at 653 were more definitive:
- Undoubtedly the words "in respect of" have a wide meaning, although it is going somewhat too far to say, as did Mann CJ in Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110 at 111, that "they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject-matters to which the words refer". The phrase gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends.
27 As the Tribunal below said that the phrase “matter relating to a protected disclosure” should be given a “wide meaning”, it did not apply the incorrect test.
28 The Tribunal erred at law by finding that section 63 of the ADT Act confers a discretion on the Tribunal. The clear words of section 63 of the ADT Act are “in determining an application for review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it.” We assume that this ground of appeal is the same ground as was put to the Appeal Panel in University of New South Wales v McGuirk (No 2) [2008] NSWADTAP 8 (29 February 2008). We adopt the reasoning and conclusion of the Appeal Panel in that matter at [12] to [14].
- 12 Mr McGuirk submitted that the Tribunal’s so-called "discretion" to give access to an exempt document, is not a discretion at all, but rather a power or a judgement that the Tribunal must exercise. He says that the agency, not the Tribunal, has a discretion to give access to exempt documents because of the use of the word "may" in section 25(1)(a) of the FOI Act . He contrasts that provision with section 63 of the ADT Act which says that the Tribunal "is to make" the correct and preferable decision. In his view, that means that the Tribunal does not have a discretion, rather it must exercise its judgment and make a determination.
13 Mr McGuirk is correct in the sense that the Tribunal does not exercise the discretion under section 25(1)(a). Rather, the Tribunal reviews the agency’s decision not to exercise the discretion. However, nothing turns on the distinction between the agency’s role and the Tribunal’s role in the circumstances of this case.
14 The use of the word "may" in section 25(1)(a) and the absence of a list of considerations that the agency must take into account, mean that an agency has an unconfined discretion to give or not to give access to exempt documents.
29 In the alternative, the Tribunal erred by failing to properly exercise the discretion conferred on it under section 63 of the ADT Act by failing to order the immediate release of the Report. This is not a question of law. It is an assertion that the Tribunal reached the wrong conclusion. Such an assertion does not amount to the identification of a question of law.
30 The Tribunal erred by finding that s 61 of the FOI Act has a meaning other than its clear terms and the Tribunal erred by failing to find, as required by section 61 of the FOI Act, that the University had not discharged its onus of proof in respect of its determination not to release the Report. The first reference to s 61 of the FOI Act is in [1] of the Tribunal’s decision:
- Section 61 of the FOI Act provides that the burden of establishing that the determinations are justified lies on the University. Mr McGuirk contends that the university has failed to discharge that burden.
31 The Tribunal goes on at [29] to refer to a submission in relation to s 61:
- Mr McGuirk further submits that even if the Report is exempt, there is an obligation on the University to give reasons why it is not releasing it despite the fact that it is exempt. He says that saying a document is exempt is a finding of fact. It is not a reason for not releasing the document. He says that it is largely irrelevant whether there are protected disclosures. He points to section 61 of the FOI Act, which places the onus of proof on the University to show that the discretion has been exercised to further the objects of the FOI Act. He says that the University has not put forward any evidence that its determination is justified or that it exercised its discretion properly under the FOI Act. The obligation of this Tribunal is therefore to find that the University has failed to discharge its onus of proof that its determination is justified.
32 The Tribunal concluded at [39] that it disagreed with Mr McGuirk’s submission with respect to the application of section 61 of the FOI Act. Contrary to Mr McGuirk’s submission to the Appeal Panel, s 61 does not oblige the Tribunal to find that the University did not discharge its onus of proof. That is matter for the Tribunal to assess on the basis of the evidence. This ground of appeal does not identify a question of law.
33 The Tribunal erred at law by failing to properly exercise their discretion conferred on it pursuant to s 58 of the FOI Act, such discretion being required at law to be exercised judicially (House v The King 55 CLR 499) and in a manner directed to give full effect to the objects of the FO I Act. Section 58 of the FOI Act states that:
- If, as a result of a review application, the Tribunal is of the opinion that an officer of an agency has failed to exercise in good faith a function conferred or imposed on the officer by or under this Act, the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister for the agency.
34 The Tribunal summarised Mr McGuirk’s submission in relation to s 58 at [30]:
- Mr McGuirk also sought a finding that the University has failed to exercise its discretion in good faith and requested that a report be made to the Minister in regard to this matter pursuant to section 58 of the FOI Act. He referred to the High Court case of Cannane v J Cannane Pty Ltd (In Liquidation) [1998] HCA 26 for discussion of the applicable principles of acting in good faith are canvassed at some length by Kirby J from paragraph [101].
35 At [42] the Tribunal said that it did not propose to make any report to the Minister pursuant to s 58 of the FOI Act.
36 The first issue is whether a decision not to bring a matter to the attention of the responsible Minister is an appealable decision. Relevantly, an appealable decision is defined in s 112 of the ADT Act as follows:
- (1) For the purposes of this Part, an "appealable decision" of the Tribunal is a decision of the Tribunal (or a decision that is taken to be a decision of the Tribunal) made in proceedings for:
(b) a review of a reviewable decision.
37 The word “proceedings” in s 112 takes its meaning from the context: Proust v Blake (1989) 17 NSWLR 267 Samuels JA at 270; Blake v Norris (1990) 20 NSWLR 300; Doran Constructions (In Liq) [2002] NSWSC 215 at [100]. The proceedings for the review of a reviewable decision involve determining whether the decision under review is the “correct and preferable” decision having regard to various matters: ADT Act, s 63. Section 58 of the FOI Act gives the Tribunal a power to bring the conduct of an officer of an agency to the Minister’s attention. The power is analogous to the power to refer certain matters to the Supreme Court for contempt: ADT Act s 131 An invitation to the Supreme Court to invoke its power to direct the commencement of contempt proceedings has been held not to be a “proceeding” in that court: Killen v Lane [1983] 1 NSWLR 171 at 178 per Moffit P. Similarly, a party who alleges that an officer of an agency has failed to exercise a function in good faith may bring that matter to the attention of the Tribunal Member. After that, it is for the Tribunal Member, acting on his or her own motion, to decide what to do. For that reason, a decision to bring the matter to the attention of the responsible Minister is executive, rather than judicial, in character and, in our view, is not an appealable decision. Even if a decision made under s 58 is an appealable decision within the meaning of that term in s 112 of the ADT Act, there was no basis for Mr McGuirk’s view that the Tribunal failed to exercise its discretion pursuant to s 58 in good faith. No error of law is disclosed.
38 The Tribunal erred by finding that, prior to the release to Mr McGuirk of the Report, the identities of the complainants should be obscured when the identity of those complainants was not only subject to judicial notice but had also been revealed by a University publication on its website. We have referred at [19] to Mr McGuirk’s submission that the names of the complainants had been published on the University’s website. No evidence was provided that this was the case and it is not a matter about which the Tribunal should have judicially noticed. We note that there was confidential material before the Tribunal as to the identities of the complainants. In the absence of evidence supporting Mr McGuirk’s assertion, the Tribunal made no error in deciding that their identities should not be disclosed: FOI Act, s 55.
39 The Tribunal erred by failing to accord the applicant procedural fairness by failing to ensure that his application for review was heard by a competent independent and impartial tribunal established by law: Johnson v Johnson 201 CLR 488 at 501. [This is despite many objections over the past year or more that Montgomery JM remove himself from further participation in any matters to which Mr McGuirk was a party on the grounds of incompetence and/or bias.] This ground of appeal is identical with grounds of appeal made by Mr McGuirk in previous appeals. We adopt the Appeal Panel’s reasoning and conclusion in McGuirk v University of New South Wales [2008] NSWADTAP 17 at [12] to [14]:
- 12 Mr McGuirk relied on the High Court’s decision in Johnson v Johnson (2000) 201 CLR 488 referring to the International Covenant on Civil and Political Rights (ICCPR) to submit that the Tribunal was in breach of the rules of procedural fairness because it was not a " competent independent and impartial tribunal established by law." According to Mr McGuirk, the Tribunal Member hearing this case at first instance, Mr Montgomery, is not competent and a review of his decisions over the last three years supports that assertion.
13 The phrase "competent independent and impartial tribunal established by law" comes from the ICCPR and is mentioned at page 501 of the High Court’s decision:
- It is a ‘fundamental rule of natural justice’ and an ‘abiding value of our legal system’ that every adjudicator must be free from bias. This same principle has been accepted in the international law of human rights, which supports the vigilant approach this Court has taken to the possibility that the "parties or the public might entertain a reasonable apprehension" that an adjudicator may not be impartial. Thus, Art 14.1 of the International Covenant on Civil and Political Rights, the starting point for consideration of the relevant requirements of international law, states:
All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent independent and impartial tribunal established by law.
40 Mr McGuirk applied for leave for the appeal to be extended to the merits of the Tribunal’s decision: ADT Act, s 113(2)(b). The reasons he gave were as follows:
- In accordance with the decision of the Appeal Panel in University of New South Wales v McGuirk [2006] NSW ADTAP 38 (currently subject to appeal to the New South Wales Court of Appeal but on other grounds), once it is established that one of the above errors of law is established, it is “appropriate to extend the appeal to the merits of the Tribunal's decision”. An Appeal Panel of the Tribunal stated in that matter at [33] as follows:
- The Tribunal has a discretion to extend the appeal to the merits of the Tribunal's decision even if no error of law has been identified: Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456. In this case, errors of law have been identified and it is appropriate to extend the appeal to the merits of the Tribunal's decision
The decision of Montgomery JM in this matter is infected with so many errors of law that it is not only appropriate to extend the appeal to the merits of the Tribunal's decision but the Tribunal is clearly under an obligation at law to do so. It is no part of the Tribunal's role to turn a blind eye to corruption and/or maladministration at an agency including but not limited to the University of New South Wales. The Tribunal must determine the correct and preferable decision and ensure in so doing that all relevant material is disclosed to it by the University. In this matter amongst others it has clearly failed to do so.
41 These submissions contain arguments which are either misconceived or which have already been dealt with in these reasons. Firstly, contrary to Mr McGuirk’s submission, the identification of an error of law does not necessarily mean that the Tribunal should extend the appeal to the merits of the Tribunal’s decision. The Tribunal did not say that in University of New South Wales v McGuirk [2006] NSW ADTAP 38, nor did the Court of Appeal say it in Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456. In Lloyd the Court of Appeal held that an Appeal Panel may grant leave under s 113(2)(b) for an appeal to extend to the merits without having first decided that an error of law exists or may exist in the decision under appeal. In any case, Mr McGuirk’s submission does not apply in this case because we have not identified an error of law.
42 Secondly, Mr McGuirk submitted that the Appeal Panel is obliged to take into account evidence which has become available to him in the 18 months since the matter was originally heard. His suggestion that that obligation arises from s 73(5)(b) of the ADT Act is incorrect. We dealt with a similar submission at [18] and [21]. If Mr McGuirk had wished to introduce fresh evidence at the Appeal Panel stage, the Appeal Panel would have dealt with such an application in accordance with the principles set out by the Appeal Panel in Building Professionals Board v Hans [2008] NSWADTAP 13. No such application was made.
43 Finally, Mr McGuirk’s submission that the Tribunal’s decision is infected with numerous legal errors is one with which the Appeal Panel does not agree, for the reasons outlined above.
44 There is nothing else in Mr McGuirk’s written submissions which raises an issue that persuades us that we should extend the appeal to the merits of the Tribunal’s decision and we are not satisfied that such circumstances exist.
Other remedies
45 Mr McGuirk requested that the Tribunal provide other remedies, namely declarations that one or more officers of the University has failed to act in good faith and that Montgomery JM failed to comply with the obligations conferred on him by the ADT Act. The Tribunal has no power to make the declarations that Mr McGuirk requested, nor does it have power to refer a request for a declaration to the Supreme Court. The Tribunal’s power is confined to referring a question of law to that court: ADT Act, s 118.
Costs
46 Mr McGuirk applied for costs saying that the special circumstances of this matter “clearly warrant an award of costs”. Section 88(1) of the ADT Act provides that:
- Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs.
47 Mr McGuirk did not specify the special circumstances which would warrant an award of costs, nor are we aware of any such circumstances.
University’s Appeal: File No 079056
48 Introduction. The University also appealed against the Tribunal’s decision. The University said that the Tribunal overlooked paragraphs (a) and (c) of s 3(1) of the Protected Disclosures Act 1994 when determining whether the public interest justifies disclosure of the Report. Secondly, the Tribunal failed to give adequate reasons for its conclusion that the public interest favoured disclosure.
49 Failure to take account of objects. Section 3 of the Protected Disclosures Act 1994 sets out the object of that Act and three means by which the object is to be achieved:
- (1) The object of this Act is to encourage and facilitate the disclosure, in the public interest, of corrupt conduct, maladministration and serious and substantial waste in the public sector by:
(a) enhancing and augmenting established procedures for making disclosures concerning such matters, and
(b) protecting persons from reprisals that might otherwise be inflicted on them because of those disclosures, and
(c) providing for those disclosures to be properly investigated and dealt with.
50 According to the University, in reaching its conclusion, the Tribunal failed to take into account two of the means by which the object is to be achieved namely those set out in s 3(1)(a) and (c). Its submission was that the undoubted importance of s 3(b) does not detract from the importance of the other means for achieving the Act’s object. The University said that only the considerations in s 3(b) are reflected in the Tribunal’s decision. The University supported its submission by quoting several passages in the Tribunal’s decision. For example, the Tribunal said at [9] that
- The Protected Disclosures Act 1994 intends that the identity of individuals who make protected disclosures should remain confidential. Further, any information that could lead a person to ascertain the identity of the complainant should not be disclosed.
51 Furthermore, the Tribunal’s recommendation to the University was to delete those parts of the Report which identify the complainants and the complaints. The Tribunal did not recommend that those parts of the Report dealing with the manner in which the University investigated the complaints be deleted.
52 The Tribunal’s reasons for recommending that Mr McGuirk be given access to the Report, despite the fact that it was found to be an exempt document, appear at [37] to [39] of the decision:
- 37 I discussed various authorities relating to the approach to be taken in exercising the overriding discretion to release documents that are otherwise ‘exempt’ under Schedule 1 in Watt v Forests NSW [2007] NSWADT 197. It serves no purpose to restate them here. It is necessary to balance the factors supporting the exemption against any public interest or other considerations justifying exercise of the residual discretion to override the exemption in order to determine whether or not the correct and preferable decision is to order access to be given to an exempt document. The residual discretion should only be exercised where there are strong grounds justifying the overriding of an exemption.
38 Mr Singleton submitted that the primary focus of the Report was a review of how the University dealt with the Bruce Hall matter and that it is in the public interest to have some protection of such a document because of the sensitivity associated with it and to allow the University the opportunity to be introspective. Further, there is public interest in ensuring that complainants making protected disclosures are not exposed. Given the fact that much of the later version of the document is already in the public domain I do not agree with that argument. I note that this material was released after Mr McGuirk’s original request. I also note that a significant period of time has passed since the Report was produced and the University has had ample opportunity to be introspective.
39 While I disagree with Mr McGuirk’s submission with respect to the application of section 61 of the FOI Act, I agree that the public interest favours the release of the Report. In my view, the factors favouring disclosure in this matter are sufficiently strong to justify disclosure. In my view the correct and preferable decision with regard to the material before me is that the Report should be released so that a comparison can be made between the two versions. However, it is my view that it is appropriate that all references within the Report that would identify the complainants or their complaints should be removed before it is released.
53 Mr Singleton said that most investigations need to be conducted confidentially and agencies may be discouraged from dealing with sensitive matters and from seeking external guidance in relation to their practices and procedures if people who have made mistakes are subject to the humility of having those mistakes exposed. Mr Singleton clarified this submission by saying that release of the Report would not embarrass the University, but if an investigator feels inhibited in relation to the conduct of an investigation, that is not in the public interest. He said that if the Report showed that the University had made mistakes which could be rectified, it would not ask for such a report in the future knowing that it could be made public.
54 In our view the Tribunal made no error in the way in which it approached the question of whether the Report should be disclosed even though it was an exempt document. The Tribunal correctly said that it must balance the public interest considerations for and against disclosure of the Report. One of the factors the Tribunal took into account was Mr Singleton’s submission that “the primary focus of the Report was a review of how the University dealt with the Bruce Hall matter and that it is in the public interest to have some protection of such a document because of the sensitivity associated with it and to allow the University the opportunity to be introspective.” Neither the object of the PD Act, nor the means by which the object is to be achieved, refers to any public interest consideration which the Tribunal overlooked.
55 Apart from protecting the identity of a complainant in certain circumstances, there is nothing in the PD Act relating to the public interest in disclosing or not disclosing the content of a document such as the Report. The PD Act only deals with the degree to which protected disclosures themselves should remain confidential. The confidentiality guideline in section 22 of the PD Act states that:
- An investigating authority or public authority (or officer of an investigating authority or public authority) or public official to whom a protected disclosure is made or referred is not to disclose information that might identify or tend to identify a person who has made the protected disclosure unless:
(a) the person consents in writing to the disclosure of that information, or
(b) it is essential, having regard to the principles of natural justice, that the identifying information be disclosed to a person whom the information provided by the disclosure may concern, or
(c) the investigating authority, public authority, officer or public official is of the opinion that disclosure of the identifying information is necessary to investigate the matter effectively or it is otherwise in the public interest to do so.
56 There is nothing in the PD Act that suggests or requires an investigation of a protected disclosure to be conducted confidentially. Nor are there any other public interest considerations reflected in the object of the PD Act, or the means by which that object is to be achieved, which the Tribunal mistakenly overlooked. The Tribunal’s reasons for concluding that the majority of the Report should be disclosed were that much of the later version of the Report was already in the public domain, a significant period of time has passed since the Report was produced and the University has had ample opportunity to be introspective. The Tribunal made no error in the way in which it took account the object of the PD Act.
57 Inadequate reasons. Alternatively Mr Singleton submitted that the Tribunal had provided inadequate reasons for its decision. The reasons for the Tribunal’s decision are set out above at [52]. Mr Singleton said that the Tribunal did not reveal the factors favouring disclosure apart from allowing a comparison between the December 2004 and April 2005 versions of the Report.
58 Section 89(2) of the ADT Act imposes a duty on the Tribunal to give reasons, either orally or in writing. Apart from the situation where a party requests written reasons for an oral decision, the Tribunal is not obliged by statute to give "adequate" reasons. Even though there is no statutory requirement governing the adequacy of reasons given under s 89(2), common law principles are relevant. At common law, there is now a judicial duty to give adequate reasons: see, for example, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269-70; Pettitt v Dunkley [1971] 1 NSWLR 376; Public Service Board of New South Wales v Osmond [1986] HCA 7; (1986) 159 CLR 656; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430. That duty appears to apply to tribunals as well as courts but a failure to give adequate reasons does not necessarily mean that the Tribunal has made an error of law: Absolon v NSW TAFE [1999] NSWCA 311.
59 In our view the Tribunal gave adequate reasons for its conclusion. It referred to Mr Singleton’s submission that it is in the public interest to have some protection for such a Report because of the sensitivity associated with it and to allow the University the opportunity to be introspective. The Tribunal also referred to the public interest in ensuring that complainants making protected disclosures are not exposed. The Tribunal concluded that because much of the later version of the Report is already in the public domain the University’s submissions were not persuasive. Finally the Tribunal noted that the April 2005 version of the Report was released after Mr McGuirk’s original FOI request and that a significant period of time has passed since the Report was produced. These reasons were, in our view, adequate.
Extension to the merits
60 The University submitted that if the Appeal Panel found no error of law, then it seeks leave to extend the appeal to the merits of the Tribunal’s decision. The University made no specific submissions as to why leave should be granted. We have not been able to identify anything that persuades us that this is an appropriate case for leave to be granted.
Orders
- File 079054
1. Leave to extend Mr McGuirk’s appeal to the merits of the Tribunal’s decision is refused.
2. Mr McGuirk’s appeal is dismissed.
3. Mr McGuirk’s application for costs is refused.
File 079056
1. Leave to extend the University of New South Wales’ appeal to the merits of the Tribunal’s decision is refused.
2. The appeal by the University of New South Wales is dismissed.
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