Of broader significance however was that in the course of the decision the Court unanimously declared  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  NSWSC 1362 at  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  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  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  NSWADTAP 79. Although not the central point in the case, the Appeal Panel decided  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?