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Tuesday, February 17, 2009

Consistency issues in NSW ADT decisions.

So much for the NSW Administrative Decisions Tribunal Appeal Panel view (not only in the decision mentioned here last week but also in another [at 37]) that the Tribunal has no "override discretion" when it comes to restricted documents - those found to be exempt as cabinet documents or concerning law enforcement and public safety: Judicial Member Montgomery in this decision [73-74] delivered two months later, didn't refer to either Appeal Panel decision about limitation on powers, and adopted the usual approach of considering whether the discretion should be exercised after finding documents exempt under the law enforcement exemption. He then decided it should not be exercised in this case. Not sure where this leaves anyone arguing the toss about the matter in the Tribunal at the moment. Let's clear it up promptly, along the Montgomery lines, by legislation if necessary.

And in this decision Deputy President Handley found that records of work completed and invoices for work carried out by a backhoe operator for a local council were not exempt under the business affairs exemption. This included the hourly rate charged for the work undertaken. Deputy President Handley said "it seems likely that the approximate hourly rate usually charged for this type of work... would be a matter of common knowledge in that line of business."

I'm with Deputy President Handley, but this decision is in contrast with quite a few in the past that have ruled that the hourly rate for work undertaken for a public sector body- particularly by lawyers including the Crown Solicitor's office- is sensitive information that if released would have an unreasonable adverse interest on their business affairs.These decisions go all the way back to a case decided by President O'Connor in 1999-
Neary v State Rail Authority [1999] NSWADT 107 at [40] and [41].

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