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Wednesday, March 26, 2008

When a Tribunal is not a tribunal

The Chief Justice of the Western Australian Supreme Court has confirmed the decision of the Acting Information Commissioner that the Salaries and Allowances Tribunal is not "a court or tribunal" for the purposes of the Freedom of Information Act, and found no error of law in the Acting Commissioner's decision to grant access to a report by Mercer consultants on senior public service pay - now some years old.

The Chief Justice concluded (at 73) that a tribunal is "a body which performs judicial or quasi judicial functions which are analogous to those performed by a court" and that the Salaries and Allowances Tribunal,for various reasons, failed the test.

The decision may have some ramifications for the interpretation of what constitutes a tribunal for FOI purposes in other jurisdictions. For example in NSW the Ombudsman has taken a similar view to that expressed in the WA decision, arguing that bodies of essentially investigative or law enforcement nature are not excluded from the Act because they are tribunals.

But the NSW Premier's Department has taken a different view suggesting that a much broader approach to the definition of a tribunal is justified (see 13.3.6 - 13.3.8 FOI Manual 2007). It remains to be seen whether the WA decision will cut much ice in the NSW Administrative Decisions Tribunal if and when the issue crops up again.

As to the situation elsewhere?

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