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Friday, January 04, 2013

Administration of Australian Honours system not matter of administrative nature

Go figure.

In a unanimous decision the Full Court of the Federal Court of Australia in Kline v Official Secretary to the Governor General [2012] FCAFC 184 decided that all requested documents concerning the operation of the Australian Honours system were not documents related to matters of an administrative nature, and  as a result were outside the scope of the Freedom of Information Act.

The documents requested included information about a particular nomination as well as other more general information about the handling of nominations. Formidable obstacles (available exemptions) beyond issues considered in this case were always likely to stand in the way of access to documents about a particular nomination. As to those more generally concerning the operation of the Honours system arguments favouring disclosure haven't held sway in this long running saga.

The Governor General's Office conceded that the act extended to documents concerning such things as staffing arrangements, the costs of running the Office, and statistics about the activities of the Office. But the Court ruled that documents that relate to the substantive functions of the Governor General including to any administrative task that underpins those functions were outside scope.

The decision accords with and follows earlier decisions in this case by the Official Secretary, Freedom of Information Commissioner Popple and AAT Deputy President Hack, and suggests the weight of opinion is all one way, favouring a narrow construction of s 6A.

One set of requested documents - working manuals, policy guidelines and criteria for an Honours award- would seem not to be policy documents required to be published by Government House as part of the Information Publication Scheme, or as a result of this decision, documents related to matters of administration. Sir Humphrey would be proud.

The Court agreed that context is important when considering the word “administrative” in legislation. It relied upon observations by Gleeson CJ in Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 as justifying disregard for the objects of the act when it came to the interpretation of s 6A:
[5] ... In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object. As to federal legislation, that approach is required by s 15AA of the Acts Interpretation Act 1901 (Cth) ... That general rule of interpretation, however, may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose.

[6] To take an example removed from the present case, it may be said that the underlying purpose of an Income Tax Assessment Act is to raise revenue for government. No one would seriously suggest that s 15AA of the Acts Interpretation Act has the result that all federal income tax legislation is to be construed so as to advance that purpose. Interpretation of income tax legislation commonly raises questions as to how far the legislation goes in pursuit of the purpose of raising revenue. In some cases, there may be found in the text, or in relevant extrinsic materials, an indication of a more specific purpose which helps to answer the question. In other cases, there may be no available indication of a more specific purpose. Ultimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling.
Yes but another line of argument is that S 6A defines the scope of the application of the FOI act to the Office of the Governor General; that the objects in s 3 confer rights of access for a number of purposes including to increase scrutiny, discussion, comment and review of the Government's activities; that the act is beneficial legislation and any ambiguity should be resolved in a way that is most favourable to those it is intended to benefit; and that the words in s 6A accordingly should be given a meaning that is fairly open consistent with the objects. 

No dice I'm afraid but this would suggest a broader interpretation of "administrative" along the lines of "concerning or relating to the management of affairs" consistent with some NSW ( N (No. 3) v Commissioner of Police, New South Wales Police Service [2002] NSWADT 340 upheld in the Supreme Court on a question of law) and WA cases that didn't get a look in here.

Instead the Full Court reasoned: 
21. In our view the relevant distinction being drawn by s 6A is between the substantive powers and functions of the Governor-General, on the one hand, and the apparatus for the exercise of that power or function, matters merely supportive of that power or function, on the other. The first respondent accepted, and we agree, that documents dealing with staffing arrangements within the Office, the costs of running the Office, or statistics about the activities undertaken by the Office, could all be the subject of a request for access to which the FOI Act would apply. 
22. The terms of the present requests by the applicant show that the substantive power or function in question was the administration of the Order of Australia, in particular nominations for appointment and the consideration of those nominations culminating in the decision to appoint or not appoint a particular person. The applicant’s requests were for access to documents of the Official Secretary which related to that substantive power or function (including the working manuals, policy guidelines and criteria, review processes and file notes concerning nominations), and not to documents relating to matters of an administrative nature. We therefore reject the applicant’s submission that any document which contains information bearing upon the Office of the Official Secretary’s conduct of the work antecedent to the consideration by the Council of its recommendation to the Governor-General contains information about matters of an administrative nature. 
23, We would add that, in our opinion, the expression “unless the document relates to matters of an administrative nature” goes to the character of the document so that, contrary to the submission of the applicant, a document would not so relate merely because it bore an annotation asking that an administrative task, such as filing, be carried out.
So any document that relates to supporting, assisting, facilitating, or implementing what the Governor General does as part of her functions is beyond the reach of the FOI act. A fair and reasonable degree of transparency and accountability for the representative of our head of state?
       The Canberra Times appears to be the only media to pick up on the decision to date.


      1. Anonymous1:18 pm

        This is a truly appalling decision and a great setback for FOI. It is hoped that indemnity could be found for Ms Kline to seek leave to appeal this decision in the High Court.I am sure there would senior counsel who would be prepared to do it.

      2. Seriously? FOI decisions are made by Popple and Hack?

      3. Anonymous1:44 pm

        @ Julia. Here Popple, Hack and the Full Court gave scant regard to the objects of the reformed FOI Act.I understand the decison has gone international and has been heavily criticised. It puts Australia in a very bad light with regards accountability and good governance. Clearly the worst decision of 2012 needs to be appealed.