In the course of the successful special leave application to appeal to the High Court in Kline v Official Secretary to the Governor General last week, Ron Merkel QC, for Kline, advanced the proposition that the exemption from the FOI act conferred on the Office of the Governor General by section 6A, except for documents in relation to matters of an administrative nature, reflected competing public interest considerations.
On the one hand the public interests of openness, accountability and responsibility, as expressed in section 3; on the other a public interest in Section 6A in not intruding on the independence of the exercise of the Governor General's functions and powers and of those assisting her in a particular context or in a particular matter.
Merkel submitted that documents concerning administrative support processes that go to facilitate the exercise of powers - in this case about the operation of the Australian Honours system - are unrelated to the exercise of a power in a particular matter or context. Such documents relate to matters of an administrative nature, and as such, are subject to the FOI act:
So it is in the particular instance that we say is protected, but the overall objective of sections 5, 6 and 6A is to facilitate the public’s right to know how such bodies are administered other than in a particular instance, and we say that the construction we contend for gives effect to that competing objective. The Full Court’s construction, with respect, effectively renders nugatory access to the FOI Act.Peter Hanks QC for the respondent agreed section 6A strikes a balance between competing public interests. However, the public interest reflected in the section is "in maintaining the confidentiality of the functions and the councils of the Crown." The general rule of interpretation to approach the construction of a provision in a way that would promote the object of the Act is displaced in this instance:
MR HANKS:We need to construe – we need to understand what is the purpose of this particular provision without reading it in light of the articulated purposes of the Act. The purpose of this provision is to create an immunity from the Act and to do so to serve a particular public interest...On a related issue concerning the obligation to publish operational information about the Honours system, Hanks submitted the FOI act to the extent s 6A applies, applies to the Office of the Official Secretary - the Council of the Order of Australia and the Governor-General are not prescribed authorities:
FRENCH CJ: Extending to the procedures which they adopt?
MR HANKS: Yes, your Honour, indeed. Now, there are entirely sensible reasons why you would extend it that far; if those procedures which they adopt are designed to ensure the integrity of decisions that are made within the Office of the Governor-General, and their confidentiality is valued in order to avoid manipulation – one can speculate about matters of that sort, but there is a value in maintaining that confidentiality, and extending the confidentiality that far...
Now, in our submission, there is no inherent difficulty in adopting a construction of section 6A that would have that effect. The purpose of section 6A is to provide that only a limited class of documents are to be amenable to requests for access under the Act, and given the nature of the public interest, which we say is reflected in the exclusion, one would expect that the number of documents protected from access would be substantial.
Although the Official Secretary is a prescribed authority, the Official Secretary has no involvement in making decisions or recommendations of the kind with which the council and the Governor-General deal. The council has a closely defined membership which does not include the Official Secretary.The Official Secretary is ex officio Secretary to the Council of the Order of Australia- which may or may not make a difference on a point not central in this case.
So insofar as the reasoning of the Full Court would exclude from access under the Act documents that might be loosely described as operational information if section 8A and section 8 were applicable, it is irrelevant because neither the council nor the Governor-General nor the Official Secretary in relation to the relevant documents is subject to the obligation imposed by section 8 to publish operational information.
But just why the criteria and related information about the Honours system isn't published is difficult to understand.
The High Court hearing is expected before the end of the year.