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Tuesday, October 13, 2009

NSWADT override discretion limited where legal privilege applies

The background and complex detail of a five year battle (and numerous Tribunal and court decisions) arising from a Freedom of Information application for access to legal advice about responsibilities of the University Council provided to the University of NSW will only be of interest to those very serious about their NSW FOI. The culmination, in the Court of Appeal in McGuirk v University of NSW [2009] NSWCA321 involved a draw for the parties on legal points as the two issues for consideration went one each way but Mr McGuirk will end up with his document if this is the end of the ride, and with a limited order for costs for part of the proceedings.

Of broader significance however was
that in the course of the decision the Court unanimously declared [92] the NSW Administrative Decisions Tribunal has no power under s 63(2) of the Administrative Decisions Tribunal Act 1987 to grant access to a document which is found to be exempt by virtue of Schedule 1, cl 10 ( the legal professional privilege exemption) of the Freedom of Information Act 1989 (NSW). As explained below (with all due respect etc) the reasoning for the decision seems questionable.Mr McGuirk gets to prevail for reasons that are too complicated to explain here [41-87 if interested].

There is nothing in the relevant NSW laws (unlike Federal legislation) that states the Tribunal cannot order the release of an otherwise exempt document. But no provision (unlike Victoria) either that confers an override discretion. The
issue of the Tribunal's powers on review of Freedom of Information decisions has been long contested.The Supreme Court (Nicholas J) in another case involving the same parties, University of New South Wales v McGuirk [2006] NSWSC 1362 at [102] ended years of uncertainty and differing decisions by tribunal members when it decided that the Tribunal had the same discretion as the original decision-maker where a document has been found to be exempt: that is to consider whether disclosure or non disclosure was the correct and preferable decision, consistent with the objects of the Act. The reasoning was that Section 25 of the NSW FOI Act provides that in determining an application an agency may (not shall) refuse access to an exempt document. Section 63 of the Administrative Decisions Tribunal Act provides:
(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.”

Justice Nicholas cited the following passage from the Tribunal decision in Mangoplah as correctly stating the position:

“85 Consistent with this jurisprudence, absent any special limitation on the Tribunal’s review function in applications under the FOI Act, it has the function by reason of s 63 of the ADT Act – indeed the duty – when reviewing a determination under ss 24 and 25 of the FOI Act to consider all issues arising in the case in relation to whether a document should be released. As indicated above, once a ground for refusal of access arises under s 25(1)(a) the issue arises whether to exercise the discretion to release an exempt document which is not a restricted document the subject of a Ministerial certificate. The decision under review must have, or must be taken to have, addressed this discretion before determining to refuse access on the ground of an exemption. The Tribunal must also address it”.

In the Court of Appeal, the only ground of appeal by the University against a decision of the Tribunal Appeal Panel considered [26] was that the Panel had erred in proceeding on the basis that it had power to grant access to a document exempt by operation of legal professional privilege. The University submitted [31] that any power a relevant officer of the University may have had to grant access to a document subject to legal professional privilege arose under the general law and not under any enactment. Justice Basten (with whom Justices Ipp and Macfarlan agreed) said:
32 Because s 63(2) is limited to the exercise of functions conferred or imposed “by any relevant enactment” the power to waive legal professional privilege is not a power enjoyed by the Tribunal..... A relevant enactment must be an Act, regulation, by-law, rule or ordinance.. Where the University obtains advice from lawyers, its rights with respect to that advice will depend upon the general law, even if it is obtained for the exercise of its statutory functions....

33 In the present case, there was no relevant grant of statutory authority. The power to waive privilege did not arise under any enactment. Accordingly, at least in respect of the exempt document in question, no power was conferred on the Tribunal by s 63(2) of the ADT Act to waive any legal professional privilege as might remain extant.

The problem with this is that while there is strong legal precedent for the general proposition, the FOI Act contains a clear additional statutory provision regarding release of documents, including any containing legal advice.The decision completely ignores the FOI Act- clearly an enactment for the purposes of Section 63(2) of the ADT Act- and Section 25 which contains a provision of the kind contemplated by Section 63(2): the exercise of functions by the administrator who made the decision, that is to release an otherwise exempt document.This isn't waiver but a statutory discretion. Parliament didn't put legal privilege documents outside the scope of the discretion. Section 25 formed a key element in Justice Nicholas' reasoning, but doesn't get a mention anywhere in Justice Basten's consideration [29-40] of the relevance of other provisions of the ADT and FOI acts. Section 63(2) provides the Tribunal with the same functions as were available to the determining officer.

Justice Nicholas' decision about ADT powers had for different (and more understandable) reasons been qualified by the Appeal Panel in IPART v Services Sydney [2008] NSWADTAP 79. Although not the central point in the case, the Appeal Panel decided [46] that the discretion did not extend to documents found to be exempt under clauses 1, 2 and 4- "restricted documents" in the language of the NSW Act.

This issue of ADT override discretion will not be relevant when the NSW FOI Act is replaced by the Government Information (Public Access) Act early in 2010. The issue in any ADT review of refusal of access under GIPA (except those concerning Cabinet and Executive Council documents where review is to be limited to whether there are reasonable grounds for the claim) will be whether there is an overriding public interest against disclosure of the information. Those with FOI cases before the Tribunal concerning legal professional privilege claims however can forget arguing that the Tribunal should exercise its discretion to grant access- unless there are any takers for another Court of Appeal challenge?


  1. I initially had some concerns when I first saw this judgment, but upon a closer reading I don't think the reasoning is flawed in the way you've described.

    The Court of Appeal appears to have drawn a fine distinction between the discretion to release an exempt document (conferred by s 25 of the FOI Act) and the discretion to waive legal professional privilege (which exists at common law).

    It is true that there is a specific exemption in the Act which pertains to legal professional privilege. In relation to a particular privileged document, s 25 confers on the decision-maker a discretion either to refuse access to the document or to grant access to the document.

    The act of disclosing a privileged document, however, operates as a waiver of privilege. In my mind, it follows that any decision to grant access to a privileged document must necessarily be preceded or accompanied by a decision to waive privilege in respect of the document.

    But the Tribunal is only empowered to exercise functions conferred or imposed "by any relevant enactment". The decision to grant access is conferred by the Act and the decision to waive privilege arises under the general law.

    As the decision to waive privilege is a necessary precondition to the decision to grant access, and the Tribunal is not empowered to make the former decision, it seems difficult to resist the conclusion that the Tribunal is also not empowered to make the latter decision.

    It's a very subtle point though.

  2. James,
    Thanks. Three judges of the Court of Appeal and you make a formidable line-up against me I'm afraid.

  3. Anonymous3:54 pm

    I agree with James to an extent, although my reading is that the decision takes a sledgehammer to the discretion rather than something more subtle. I read the decision to mean that while s. 25 provides a discretion to release a privileged document, it cannot be activated without an own-motion power to waive privilege which is absent. In effect, the decision holds that the discretion empowers a tribunal to think about disclosure, but no more. Subtle indeed...

  4. Thanks Anonymous. I'm counting you as 50-50 so it's four and a half to one and a half as it stands.Have either of you considered what if any effect this reasoning will have on the provision in the new GIPA Act that recognises privilege as an overriding public interest against disclosure(without any balancing) but requires an agency to consider waiver before relying on the provision? The Act states the decision regarding waiver is not subject to external review. In any event in the new GIPA world the ADT has no discretion of the kind discussed, to release an otherwise exempt document. The issue before the Tribunal generally will be simply whether there is an overriding public interest against disclosure. Happy to give some of this more space and even give you a guest post on this or related (or unrelated topics) and feel free to contact me

  5. Unfortunately the scheme under the new GIPA Act seems to be watertight insofar as the 'public interest override' discretion is concerned.

    I had wondered whether an argument might nevertheless be made that the discretion still exists, but s 126(1)(e) expressly prohibits agencies from disclosing, in any notice or notification given under the Act, information for which there is an overriding public interest against disclosure. That appears to be a conclusive answer to the question.

    There seems to be nothing preventing agencies from disclosing such information outside the framework of the GIPA Act, but as the ADT will only have jurisdiction in respect of applications made under the Act, the prohibition in s 126(1)(e) would probably also prevent the ADT from releasing information in its decisions (which are likely to be notices or notifications under the Act).

    The relevance of this judgment seems to be limited to applications pending under the existing FOI legislation (or that of other States) and even then only to cases involving privileged documents.

  6. I should have also mentioned that the requirement to consider waiving privilege in s 5(2) of the GIPA Act is not a particularly helpful requirement from an applicant's point of view.

    It's not reviewable by the ADT or the Information Commissioner - in fact, the applicant doesn't even have a right to an internal review.

    It's always open to an applicant to apply to the Supreme Court for mandamus to compel the agency to perform its duties, but the duty is a duty to 'consider' waiver, not a duty to waive, and once the agency has properly turned its mind to the matter nothing more can be done.

  7. James,
    Agree-except internal review would involve reconsideration of waiver. Section 84 of GIPA states it is to be done by making a new decision as if the original decision had not been made.In addition while the waiver element is not subject to external review there is scope to complain to the Information Commissioner about an agency's conduct in exercising functions under the Act. The Commissioner's powers however are much the same as the Ombudsman.

  8. You're right about that - even though a decision not to waive privilege is not a reviewable decision, a decision to refuse access by reason of privilege is still reviewable - so it will have to be considered again on review.

    Good to know that the Information Commissioner will have general supervision in any event.