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Friday, May 04, 2012

AAT pulls the shade on FOI access to Australian Honours guidelines

Administrative Appeals Tribunal Deputy President Hack in Kline and Official Secretary to the Governor General [2012] AATA 247 upheld the decision by Freedom of Information Commissioner Popple that documents sought concerning the operation of the Australian honours system were not subject to the Freedom of Information Act. 

For shades of Sir Humphrey, read on.

Ms Kline had sought access to documents concerning unsuccessful nominations by her of another person for an award in 2007 and 2009, and two other categories of documents: "Working manuals, policy guidelines and criteria related to the administration of awards within The Order of Australia", and "Documents relating to review processes i.e. right of appeal in cases of maladministration."

The issue before the Tribunal was whether the Office was required to deal with the application in the light of  s 6A: the act "does not apply to any request for access to a document of the Official Secretary to the Governor-General unless the document relates to matters of an administrative nature." If the application came within s 6A a separate question not raised in this case would arise concerning any relevant exemptions.

Deputy President Hack rejected what he described (without elaboration) as "sophisticated arguments" on the applicant's behalf, that the words relate to "matters of an administrative nature" should be interpreted broadly. He preferred to use his words, a "simple answer": any documents that relate to any substantive functions of the Governor-General including the award of honours are outside the scope of s 6A. :
 ".. documents generated in connection with the conferral of honours do not ordinarily relate to matters of an administrative nature...While it is possible to conceive of exceptions to this general proposition (correspondence with the supplier of medals and insignia, or with a caterer providing refreshments at the awards ceremony come to mind), the documents in question do not relate to this sort of matter. If the Act was intended to apply to documents generated in connection with a wider view of the Governor-General’s functions, it would have done so using clear words.
(Comment: An even simpler approach might be that "relates to matters of an administrative nature" means "relates to matters of management and administration" but we won't go there.)

In reaching his decision Deputy President Hack drew on the decision of Justice Gray in Bienstein v Family Court of Australia, a Federal Court case involving s 5 and the same FOI limitation as it applies to  documents held by the courts. The Deputy President saw similarities between the functions of the Governor General in making decisions on award nominees, and those of a judge exercising a judicial function. In both cases closed doors were necessary.
22. Choices have to be made between the nominees, and unsuccessful nominees may be upset when they are overlooked. Making those choices is akin to a judicial function that involves the exercise of delicate judgement. The Governor-General has the benefit of the advice of the Council of the Order when making her decisions; the Council is comprised of independent persons who bring a range of experiences and perspectives to bear on their work. That frank advice is essential to the process. While judges give reasons for their opinions, the decision in Bienstein confirms the courts are not expected to expose internal documents that might compromise the integrity of the process in the public mind, if only because they could be misunderstood or muddy the waters. That approach applies equally to documents held by the Official Secretary in relation to the system of honours.
23. The award of honours remains part of the Governor-General’s function, and – like a good deal of the work of the Governor-General – that process has occurred behind closed doors for good reason.
if Deputy President Hack is correct in taking a narrow view of s 6A, this analogy may be correct as far as it goes, putting beyond FOI reach documents held by the Office concerning individuals nominated for awards.

But the reasoning doesn't explain how this "closed doors" imperative is a relevant consideration when it comes to the manuals, guidelines and criteria for awards, and any documents held concerning review procedures. Why such documents need protection because disclosure would impact on "frank advice", "compromise the integrity of the process in the public mind" or "muddy the waters" remains a mystery. Au contraire, disclosure might have a positive rather than a negative impact.

I understand the applicant in this case has preliminary legal advice that there are grounds for appeal.

The broader public policy issue that deserves further consideration is why criteria and guidelines used in determining Australian Honours awards are not published or accessible. 

Arguably documents of this kind are the type that Parliament intended should be made publicly available by every government agency. "Operational information" (defined in s 8A to include rules, guidelines, practices and precedents relating to decisions and recommendations) must be published as part of each agency's Information Publication Scheme- unless exempt.(Government House has no published operational information.)

In line with this decision the Office of Official Secretary won't have to bother dealing with any application for documents for anything to do with the Governor General's substantive functions.

It raises the question how properly to categorise Honours manuals, guidelines and criteria and any similar documents held at Government House if they are not policy or related to matters of an administrative nature? Contributions by sir humphreys welcome.

That said it reminds of the exchange on the BBC's Yes Minister program as Sir Humphrey and the minister darted and weaved to avoid questions before a parliamentary committee- by distinguishing policy and administration.
Betty Oldham: Look, Sir Humphrey, whatever we ask the Minister, he says is an administrative question for you, and whatever we ask you, you say is a policy question for the Minister. How do you suggest we find out what is going on?
Sir Humphrey Appleby: Yes, yes, yes, I do see that there is a real dilemma here. In that, while it has been government policy to regard policy as a responsibility of Ministers and administration as a responsibility of Officials, the questions of administrative policy can cause confusion between the policy of administration and the administration of policy, especially when responsibility for the administration of the policy of administration conflicts, or overlaps with, responsibility for the policy of the administration of policy. 


  1. Anonymous8:54 pm

    This is a totally appalling decision. Tom Brennan is highly respected and it appears his sophisticated argument was not understood by Deputy President Hack. The decision reflects very poorly on him. However, the worst offenders in this drama are the officials in the Office of the Official Secretary and indeed the Governor General herself.

    Ms Kline has put up a sterling fight for a worthwhile cause. It is clear her case has merit and appeal prospects. I hope that she is not ground down by the government and that she gets the support she needs to appeal this rotten and unjust decision.

    1. Anonymous11:36 am

      It is very interesting that Government House has no published operational information. As a Statutory Body the Office of the Official Secretary is required to disclose this under s8A. I would imagine this will be followed up in Senate Estimates. Deputy President Hack's decision is patently absurd.