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Thursday, May 01, 2008

NSW Court of Appeal to decide on Tribunal powers

As a result of this decision in the Supreme Court, the NSW Court of Appeal is to decide whether the Administrative Decisions Tribunal has power to order the release of a document found to be exempt under the Freedom of Information Act, where the Tribunal judges this to be the correct and preferable decision.

An earlier Supreme Court decision (involving the same parties but a different FOI application) found such a power existed, after conflicting findings in several cases by different Tribunal members. The Tribunal has subsequently given consideration to this issue as a matter of routine where a finding has been made that a document is exempt. Only in a few cases has it exercised the power, but it has resulted in some significant disclosures.

In the case before the Court of Appeal, the Tribunal had ordered release of legal advice from senior counsel to the University of NSW, concerning the responsibilities of the University's governing body. The reasons(at 34) for release despite the legal professional privilege exemption: the advice was now 5 years old, did not relate to a current issue or dispute, the applicant already had obtained extracts from an unknown source, and the University had been prepared to waive privilege and provide the document in an unsuccessful attempt to settle another matter with the applicant.

As I said at the time, hardly sounds like any state secrets would be disclosed, and you have to wonder about the vigorous efforts by the University over 3 years to argue that it shouldn't be released.Now the University is off to the Court of Appeal. Has Vice Chancellor Fred Hilmer had a look at what this is costing, and for what purpose?

Through the University's actions, the applicant, Michael McGuirk is exposed to the risk of losing the Court of Appeal case, and being stuck with the University's costs, yet another deficiency in the NSW FOI regime.

Two key players in FOI in NSW, the Department of Premier and Cabinet and the Crown Solicitors Office have been uncomfortable with the decision that the Tribunal had override powers, and are no doubt pleased that there is to be another chance to have this reconsidered.

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