McGuirk v Independent Commissioner Against Corruption [2006] NSWADT 19 (20 January 2006)

Last Updated: 24 January 2006

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

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


PARTIES: APPLICANT
Gerard Michael McGuirk
RESPONDENT
Independent Comissioner Against Corruption



FILE NUMBERS: 053269

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 14/04/2005



DECISION DATE: 20/01/2006

BEFORE: Montgomery S - Judicial Member





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

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

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
In person

RESPONDENT REPRESENTATIVE: RESPONDENT
J McDonnell, solicitor

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


Reasons for Decision:

REASONS FOR DECISION

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:

"9 Certain bodies etc exempt from operation of Act
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."

7 Insofar as is relevant, schedule 2 of the FOI Act provides:

"SCHEDULE 2 – Exempt bodies and offices
(Section 9)
...
The Independent Commission Against Corruption corruption prevention, complaint handling, investigative and report functions.
The office of Inspector of the Independent Commission Against Corruption operational auditing, complaint handling, investigative and report functions."

8 Section 24(1)(a) of the FOI Act provides for the determination of applications. Section 53(1) provides that a person who is aggrieved by a determination made under section 24 or 43 may apply to the Tribunal for a review of the determination. Section 53(3)(a)(i) provides that a person is aggrieved by a determination if the determination is to the effect that access to a document is refused.

9 Section 20 of the ICAC Act provides:

"20 Investigations generally
(1) The Commission may conduct an investigation on its own initiative, on a complaint made to it, on a report made to it or on a reference made to it.
(2) The Commission may conduct an investigation even though no particular public official or other person has been implicated.
(3) The Commission may, in considering whether or not to conduct, continue or discontinue an investigation (other than in relation to a matter referred by both Houses of Parliament), have regard to such matters as it thinks fit, including whether or not (in the Commission s opinion):

(a) the subject-matter of the investigation is trivial, or
(b) the conduct concerned occurred at too remote a time to justify investigation, or
(c) if the investigation was initiated as a result of a complaint the complaint was frivolous, vexatious or not in good faith.

(4) Before deciding whether to discontinue or not to commence an investigation of a complaint, the Commission must consult the Operations Review Committee in relation to the matter.
(5) If the Commission decides to discontinue or not to commence an investigation of a complaint or report made to it, the Commission must inform the complainant or officer who made the report in writing of its decision and the reasons for it."

10 Section 59 of the ICAC Act provides that the functions of the Operations Review Committee are as follows:

"(a) to advise the Commissioner whether the Commission should investigate a complaint made under this Act or discontinue an investigation of such a complaint,
(b) to advise the Commissioner on such other matters as the Commissioner may from time to time refer to the Committee.
(2) The Commissioner shall consult with the Committee on a regular basis, and at least once every 3 months."

11 Section 35A of the Ombudsman Act 1974 provides as follows:

"35A Immunity of Ombudsman and others
(1) The Ombudsman shall not, nor shall an officer of the Ombudsman, be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings in respect of any act, matter or thing done or omitted to be done for the purpose of executing this or any other Act unless the act, matter or thing was done, or omitted to be done, in bad faith.
(2) Civil or criminal proceedings in respect of any act or omission referred to in subsection (1) shall not be brought against the Ombudsman or an officer of the Ombudsman without the leave of the Supreme Court.
(3) The Supreme Court shall not grant leave under subsection (2) unless it is satisfied that there is substantial ground for the contention that the person to be proceeded against has acted, or omitted to act, in bad faith."

ICAC’s Argument

12 Mr McDonnell argues that the Tribunal has no jurisdiction to hear and determine the application because ICAC is exempt from the operation of the FOI Act in relation to, amongst other things, its complaint handling and investigation functions. He further argues that where access is sought to a document that relates to the functions specified in schedule 2 of the FOI Act of a body that is exempt from the operation of the Act by schedule 2, from the moment the document is identified as relating to those functions, the provisions of the Act do not apply to it. In particular, he asserts that section 24 (requiring a determination to be made) and section 25 (which provides the grounds for an agency to refuse access) are not applicable.

13 In his submission, ICAC must first decide whether it is exempt from the operation of the FOI Act (in the same way as a court or Tribunal must first determine whether it has jurisdiction). Only if it decides that it is not exempt from the operation of the FOI Act can it make a determination under the FOI Act that a document is exempt. Such an exemption could not be on the basis that the document relates to ICAC’s corruption prevention, complaint handling, investigative and report functions.

14 Mr McDonnell submits that a decision by ICAC that it is exempt from the operation of the FOI Act does not preclude an applicant from seeking internal or external review, only that, on any such application, the first thing the internal or external reviewer must do is to determine whether it has the power or jurisdiction to determine the matter. This may require the internal or external reviewer to make a finding that the documents sought in fact relate to the ICAC's schedule 2 functions.

15 Mr McDonnell referred to the decision of Higgins JM in Waite v Director-General, Attorney General's Department [2004] NSWADT 109 where the Judicial Member considered similar issues in relation to the Office of the Privacy Commissioner. That Office is also listed in schedule 2 of the FOI Act.

16 In Waite, access was sought to information held by Privacy NSW. Judicial Member Higgins referred to provisions of the FOI Act and section 38 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"), which confers jurisdiction on the Tribunal to review a reviewable decision. She then set out (at paras. 23 to 29) her reasoning as follows:

"23 In my opinion, the matters in issue in this application are relatively simple. The first issue is whether Mr Waite’s FOI request came within the terms of s. 9 of the FOI Act and as a result the Director-General was not required to comply with the provisions in Part 3 of the Act. This issue requires the Tribunal to make a finding of fact as to whether the documents sought by Mr Waite were documents relating to the ‘complaint handling, investigative and reporting functions’ of the office of the Privacy Commissioner. In my opinion, having examined the file of the office of NSW Privacy, which was provided to the Tribunal on a confidential basis, I am satisfied that Mr Waite’s FOI application does come within these terms. That is, the documents sought by Mr Waite clearly relate to the complaint handling functions of NSW Privacy.
24 Accordingly, the Director-General is exempt from the operation of the FOI Act in respect of the documents for which Mr Waite has sought access.
25 The next issue is whether the Director-General has in any event treated Mr Waite’s request pursuant to Part 3 of the FOI Act and made determinations that are reviewable by the Tribunal.
26 Having regard to the terms of the original determination of the Director-General’s delegate, where she expressly stated that she was acting in accordance with s. 28(1)(b) of the FOI Act, in my opinion, she dealt with Mr Waite’s request pursuant to Part 3 of the FOI Act. Furthermore, Mr Waite was informed that he had a right to request an internal review, a right that he subsequently exercised. However, she also stated that NSW Privacy was exempt from the operation of the FOI Act and that "in the spirit" of the FOI Act, Ms Johnson of NSW Privacy had conducted a search to ascertain whether there were any documents that came within the terms of his request. As mentioned above, no such documents were found.
27 Accordingly, at most, the Director-General has voluntarily dealt with Mr Waite’s FOI application as if the provisions in Part 3 applied. In my opinion, this is not sufficient to give the Tribunal jurisdiction to review the original determination of the delegate or the internal review determination of the Director-General.
28 Section 38(1) of the ADT Act clearly provides that the Tribunal only has jurisdiction to review an administrative decision where the legislation under which that decision was made expressly gives the Tribunal jurisdiction to do so. In the case of decisions made under the FOI Act, Parliament has only given the Tribunal jurisdiction to review determinations that are made pursuant to ss. 24 or 43 of the FOI Act. On the other hand, Parliament has not given the Tribunal jurisdiction to review a decision by an agency that it is exempt from the operation of the FOI Act by reason of s 9 of that Act. Accordingly, where an agency is able to establish, as a matter of fact, that it is exempt from the operation of the FOI Act, the Tribunal has no jurisdiction to hear and determine an external review application of an FOI applicant whose request for access to documents comes within s. 9 of the FOI Act.
29 The fact that an agency, which is exempt by virtue of s. 9 of the FOI Act, voluntarily or mistakenly responds to an FOI application pursuant to Part 3 of that Act, cannot give the Tribunal jurisdiction where Parliament has clearly expressed a contrary intention."

17 Mr McDonnell submits that as a matter of precedent, this Tribunal ought to follow Waite. He referred to the views expressed by the Tribunal’s President in BY v Director- General, Attorney General's Department [2002] NSWADT 79, where he stated in regard to t the question of precedent in the Tribunal:

"Threshold Issue: Reopening Prior, Considered Tribunal Rulings
21 The threshold question that arises before considering any further these contentions is whether the present Tribunal should revisit the prior considered rulings. Counsel for the Administering Minister acknowledged the importance of different panels of a Division of the Tribunal being seen to deal consistently with the same or like questions. He acknowledged that the view might be taken that it would not be appropriate to revisit the previous, considered rulings.
22 In my view, a later Tribunal should exercise caution in reopening prior, considered rulings of an earlier Tribunal. Ordinarily a later Tribunal should adopt the ruling of the earlier Tribunal; and leave these questions to be finally determined within the Tribunal at the Appeal Panel level. Notably in the earlier cases where the Administering Minister’s submissions have been rejected, there was no appeal; but that may have been, as counsel for the Administering Minister suggested at hearing, because ultimately following full substantive consideration the determinations in issue were affirmed.
23 Normally a prior considered Tribunal ruling should only be reopened if a new, significant argument is raised before the later Tribunal."

18 Mr McDonnell also contends that the Tribunal should be satisfied, on examining the Madgwick report and in the light of the provisions of the ICAC Act referred to above, that it "relates to" or "is reasonably connected with" the respondent's corruption prevention and investigative functions" within the meaning of Schedule 2 of the FOI Act.

Mr McGuirk’s Argument

19 Mr McGuirk contends that ICAC is obliged to make original determinations of applications for access to documents, and to conduct internal reviews of such applications if requested by the applicant. If the applicant is still not satisfied, he or she is entitled to seek an external review of the decision from the Ombudsman or the Tribunal. He says that an applicant who is aggrieved by an agency’s determination that a document is an exempt document on the basis that it contains matter in relation to such of the functions of the body or office as are specified or described in Schedule 2 of the Act has the right under section 53 of the FOI Act to apply to the Tribunal for a review of that determination. He further says that the fundamental principle of natural justice that no person may judge their own case applies to ICAC. He argues that whether a document is an 'exempt document' by virtue of Schedule 1 to the Act, or by virtue of Schedule 2 to the Act, is not a matter which the agency itself is able to determine with finality. This is a matter that is for bodies other than the agency itself to determine. It is not a matter for the agency itself to determine, as a matter of finality in law, whether a document 'relates' to certain functions.

20 Mr McGuirk disputes Mr McDonnell’s contention that as a matter of precedent, this Tribunal ought to follow Waite. He submits that this argument fails as he wishes to bring new, significant argument before the Tribunal. He says that the reasoning of the Judicial Member in Waite is legally flawed, and should not be followed. He says that the reasoning contains both a fundamental misconstruction of the terms of the FOI Act, and also crucial non sequiturs that are entirely at odds with both the letter and the intent of the FOI Act.

21 He also submits that the Judicial Member has varied significantly from the line of reasoning she relied on in Waite in her more recent decision in the matter of The Australian Wine Consumers Co-Operative Society Limited v Commissioner for Fair Trading [2005] NSWADT 224. In reply to this submission Mr McDonnell submits that the Judicial Member has not varied at all from her reasoning in Waite.

22 Mr McGuirk says that the exemption for ICAC is restricted to its operational functions. He contends that the functions of the Operations Review Committee are primarily administrative, rather than operational in nature, and the exemption claimed for the Madgwick report does not apply. He also says that the leading case in regard to what constitutes an operational function as opposed to an administrative function is Commissioner of Police New South Wales v "N" [2003] NSWSC 943 and that the relevance of this case is apparent from the first paragraph in the judgement, which states:

"The issue for determination is whether the words "administrative functions" where appearing in s 39 of the Freedom of Information Act 1989 (the FOI Act) applies to all functions discharged by the Police Service established under the Police Service Act 1990 or whether they are intended to refer to what have been described as an "internal" function as opposed to an "operational" function of the Police Service."

23 Mr McGuirk also referred to the Court of Appeal decision in The Ombudsman v Laughton [2005] NSWCA 339. In that matter the Ombudsman challenged the jurisdiction of the Government and Related Employees Tribunal ("GREAT") to hear an appeal against a decision of the Ombudsman in relation to a staff appointment. The Ombudsman relied on the provisions of section 35A of the Ombudsman Act 1974 in arguing that GREAT lacked jurisdiction to hear Mr Laughton's appeal. The Court of Appeal held that notwithstanding section 35A, GREAT did have jurisdiction to hear Mr Laughton's appeal. Mr McGuirk submitted that parts of this decision are highly relevant to this matter.

Findings

24 I essentially agree with Mr McDonnell’s arguments in relation to the approach to be taken in determining this issue.

25 As indicated, section 9 of the FOI Act provides that bodies specified or described in Schedule 2 of the FOI Act are exempt from the operation of the Act but only in relation to the functions specified. In the case of ICAC, it is exempt from the operation of the FOI Act in relation to its corruption prevention, complaint handling, investigative and report functions.

26 To give section 9 of the FOI Act some meaning, the proper analysis requires that consideration be given to the question whether the particular means that purports to invoke the operation of the Act relate to the specified functions. At the initial stage, the question will be whether the application for access to a document attracts the application of section 9. This does not involve any consideration of whether the document is an ‘exempt document’, rather it involve consideration of whether the document relates to one of the agency's specified functions.

27 If the initial question is answered in the affirmative, the FOI Act will have no application to the request and therefore the agency can make no determination under section 24 of the FOI Act. This position is consistent with that taken in Waite. The decisions in Australian Wine Consumers Co-operative Society Ltd v Commissioner for Fair Trading and the other authorities to which Mr McGuirk has referred do not alter this position.

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.

29 I agree with the submission that a decision by ICAC that it is exempt from the operation of the Act does not preclude Mr McGuirk from seeking internal or external review. I also agree that the initial approach is to determine whether or not there is the power or jurisdiction to determine the matter. The approach adopted by the Judicial Member in Waite was to make a finding on the question of whether the documents sought in fact relate to the respondent's Schedule 2 functions. This seems to me to be the correct approach.

30 In order to answer the initial question it is necessary to make a finding of fact as to whether the Madgwick report is a document that relates to the functions specified in Schedule 2 of the FOI Act i.e. does it relate to ICAC’s ‘corruption prevention, complaint handling, investigative and report functions’.

31 I have examined the copy of the Madgwick report, which was provided to the Tribunal on a confidential basis. I am satisfied that the report is a document that relates to the functions specified in Schedule 2 of the FOI Act. That is, the document relates to ICAC’s ‘corruption prevention, complaint handling, investigative and report functions’.

32 Accordingly, ICAC is exempt from the operation of the FOI Act in respect of the Madgwick report. It follows that the Tribunal has no jurisdiction to hear and determine Mr McGuirk's application.

Order:

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