NSW Supreme Court finds ADT has powers to order disclosure of exempt documents

On 8 December the Supreme Court in University of NSW v Gerard Michael McGuirk (2006) NSWSC1362 decided that the proper interpretation of Section 63 of the Administrative Decisions Tribunal Act was that the Tribunal had a discretion to order access be given to documents which are exempt documents under the FOI Act, if it decides to do so is the correct and preferable decision based on the material before it.

This decision resolves a matter on which members of the Tribunal have differed. Judicial Member Smith in Mangoplah Pastoral Company Pty Ltd v Great Southern Energy (1999) NSWADT 93 decided that the Tribunal had such a discretion but in that case, and others that followed, no member of the Tribunal considered it appropriate to exercise the discretion and order release.

President O’Connor in Neary v The Treasurer NSW (2002) NSWADT 261 decided that the Tribunal had no such powers. That decision, followed in the ADT in the University of NSW v McGuirk cases, has now been found to be wrong in law.

The Supreme Court is still to make orders in this case and much of the decision revolves around another procedural issue concerning the conduct of the case by the ADT.

However the findings regarding the existence of discretionary powers are important in that any FOI applicant is now in a position to make submissions in future ADT cases that an otherwise exempt document should ,in the circumstances, be disclosed. This could include instances where exempt matter could be innocuous, is already in the public domain, or where strong public interests justify disclosure, for example of a document that could be claimed exempt on legal professional privilege, or similar grounds.