Order of Australia Honours Secretariat subject to FOI Act

Senator Bob Brown in Estimates hearings in February raised an issue about the Order of Australia Council, noting it was not subject to the Freedom of Information Act. He and others concerned about transparency and accountability in this area will be interested to hear that documents held by Honours Secretariat staff of an administrative nature are in fact subject to the Act. Not for reasons I speculated about at the time in Orders of Australia beyond question? (although they might still hold) but because of a more straight forward reason. Honours secretariat staff are employed under the Governor General Act 1974. Section 6A(2)  of the FOI act reads:

For the purposes of this Act, a document in the possession of a person employed under section 13 of the Governor‑General Act 1974 that is in his or her possession by reason of his or her employment under that section shall be taken to be in the possession of the Official Secretary to the Governor‑General.

Karen Kline, referred to in that post as having raised the issue of the Order of Australia Council's FOI status in a submission to the Senate Committee examining the Reform Bill, resorted to FOI in January to seek the return of original documents lodged with a so far unsuccessful nomination, which you would have hoped wouldn't be necessary.  After no response she took the matter to the Administrative Appeals Tribunal. At a conference on the case in Brisbane on Friday  Deputy President Hack accepted an Australian Government Solicitor submission that there was a flaw, finding the FOI application was invalid because the fee had not been paid- despite the fact Ms Kline applied for remission of the fee in making the application, the Official Secretary had not asked for payment or otherwise assisted her to make a valid application, and a few days before the conference indicated a willingness to waive the fee. None of this was relevant to the problem that the $30 had not been paid at the time, as required by section 15.

However in the written submission lodged on behalf of Stephen Brady, the Official Secretary (left), Justin Hyland, Senior Executive Lawyer Australian Government Solicitor, after noting ".. it is not possible to request access to documents of the Secretary of the Order of Australia," indicated a change of thinking on the issue of the application of the Act to documents held by the Secretariat:

However in considering the matter further, we have noted that the documents in question are in fact in the physical possession of Honours secretariat staff,who are employed under s 13 of the Governor General Act 1974. It follows that under s 6A(2) of the FOI Act the documents are deemed to be in possession of the Official Secretary. Therefore, to the extent the documents to which access is sought relate to matters of an administrative nature, a request for access to those documents may be made.

This important principle having been accepted, another issue likely to arise in the event of further resort to use of the FOI act is the interpretation of  document relating to "matters of an administrative nature," the words used in Section 6A(1) to delimit the scope of the application of the act to documents held by the Official Secretary. This section has not been subject to judicial interpretation, although the same term is used in sections 5 and 6 regarding documents held by courts and tribunals and has been the subject of several decisions that focus on the meaning in the context of the independence of such bodies. What s 6A means is another matter, but similar issues may arise particularly regarding documents that relate to a particular nomination for an Order of Australia award.The Official Secretary of course also has available all the exemptions in the FOI act.

In Bienstein v Family Court of Australia [2008] FCA 1138 Justice Gray [at 46] quoted the Hansard from 1981 when the act was amended in response to a committee recommendation to include sections 5 and 6:

The kind of matters that the Committee had in mind as justifying the operation of the Bill were questions relating to the number of sitting days, the number of cases determined, the number of cases withdrawn, the number of cases which were subsequently appealed, criminal cases in which bail was awarded and so on....  The Senate Committee does not see this as interfering or trespassing in any way with the independence of these bodies which, as a part of our constitutional system, it is important to preserve. It is a distinction which is familiar and understood and the language in which the amendment is cast is sufficiently clear and precise, in our view, to be accommodated directly by the Government

Justice Gray went on to note [54]

The wording is identical to that used in s 5, but s 6 relates to institutions that are not judicial, in the sense that they are not created under Ch III of the Constitution and are therefore emanations of the Executive arm of government, required to be entirely separate from the judicial arm. Having said this, the independence of those institutions from interference by the Executive arm of government is also important. The then Attorney-General recognised this in the course of the Senate debate. Having regard to the nature of both courts and the institutions to which s 6 applies, and to the importance of judicial independence, and the independence of the other institutions, recognised on both sides of the Senate debate about the amendment, it can be taken that both s 5 and s 6 are intended not to extend as far as requiring the giving of access to documents that would put that independence at risk."

Justice Gray declined to follow Western Australian decisions based on the dictionary definition of the word "administrative", meaning "concerning or relating to the management of affairs," where the words were confined to documents relating to the management of the affairs of a court or tribunal, excluding documents "created in the course of and for the purpose of particular matters dealt with by the agency in the exercise of its adjudicative functions." (Although not cited this decision of Chief Justice Martin in the Western Australian Supreme Court outlines the narrower WA interpretation.) Justice Gray [77] said this approach
"would constrain unduly the operation of the phrase "relates to matters of an administrative nature." It should not be followed in relation to s 5 of the FOI Act." Leading to this conclusion[78]:

..clearly.. s 5 of the FOI Act should be interpreted so that access to documents relating to the exercise of the judicial functions of courts, and to the decision-making functions of tribunals, are not excluded from the right of access merely for that reason. What emerges from the context of s 5, as well as from the extrinsic materials, is a concern that documents the revelation of which would impinge upon the independence essential to the exercise of the judicial function, or the decision-making process, should not be made available. It follows that, while the words "relates to matters of an administrative nature" in s 5 (and also in s 6) should be interpreted as including documents that bear upon the exercise of the judicial, or decision-making, functions, only those documents the availability of which would not impinge upon the necessary independence should be regarded as documents relating to matters of an administrative nature. The test will not necessarily be easy to apply. Its application will depend upon the terms of the request for a document, and may require an examination of the circumstances in which the document was produced and is retained. In the application of the test, however, it is necessary not to take too strict a view of what is necessary to be kept confidential in the interests of preserving the independence of the judicial and administrative decision-making functions.