Much ado, to no avail, about the records on "true heir to the throne of Iran."

There is an angle but nothing of significant Freedom of Information interest in this Federal Court decision. However it is hard to go by Justice Gray's first sentence without a peek. The decision runs to 100 paragraphs.To cut to the chase, Ms Fard failed in her application and had costs awarded against her.

1. This is the strangest case I have encountered in almost 29 years as a judge. The applicant, Ms Fard, was born in Iran in 1947. In 1987, she fled to Turkey to avoid persecution of those of the Baha’i faith, of whom she is one. She was granted a visa to come to Australia. She arrived on 25 May 1988. She claims that the respondent, the Minister for Immigration and Citizenship (“the Minister”) holds documents that state falsely that Ms Fard is the mother of a man called Sohyle Lagheyefar or Sohail Laghaifar (or some variant of those spellings). She says that, in consequence of the existence of these false records, she has suffered various forms of harm and persecution in Australia. She wishes the Minister to cease to hold those records, or to correct them.
2. There is in Australia a man who has been known by the name Sohyle Lagheyefar or Sohail Laghaifar (or some variant thereof). He denies that Ms Fard is his mother and denies that that is his name. He claims to be his Imperial Majesty Soltan Qeumars Shah Qajar, the grandson of a Shah who was deposed in 1925, and the true heir to the throne of Iran. For convenience, I refer to him as Mr Qeumars in these reasons for judgment, as I did at the trial.
3. There are indeed many documents in the records held by the Department of Immigration and Citizenship (“the Department”) in which it is stated that Ms Fard is the mother of a son whose name is spelt in one or other of the ways referred to in [1] above, or some variant of either of those spellings. A number of those documents were tendered in evidence by pro bono counsel for Ms Fard, along with evidence intended to demonstrate the falsity of the documents to the extent that they represent that Ms Fard has a son who bears the name in question (and sometimes in other respects). The case put on behalf of Ms Fard appears to be that documents were falsified deliberately, in order that Mr Qeumars could be brought to Australia, given a false identity, and kept here.

Tribunals not courts, but if it looks like....

You may have been thinking I got to 2500 posts and dropped by the wayside. 

Or off the perch. Not quite.

I've been busy with other things including representing an applicant in a Government Information (Public Access) Act review in the NSW Administrative Decisions Tribunal. That  involved a few visits to John Maddison Tower in Goulburn St where the Tribunal has been located since moving south from long time digs in Elizabeth St in October last year. The former home was in an office block near Sydney's heavyweight legal precinct. The John Maddison Tower and the Downing Centre next door are court buildings in the next tier, with John Maddison home to the District Court including the civil registry and several floors of courtrooms, the Federal Magistrates Court and the Chief Industrial Magistrates Court. These days with the ADT, the Dust Diseases Tribunal, and the Medical Tribunal for company making it a mix of parts of both the executive and judicial branches of government.

Citizens jostling with barristers and solicitors passing through the security check as they enter on the ground floor, and who consult the day's tribunal listings in the foyer affixed to a notice board headed "District Court" may find this a somewhat intimidating, heavily legal environment.

Blanket FOI exclusion for federal courts complaint handling

Vmenkov

Blanket exclusions from freedom of information laws for some government agencies and blanket exemptions for information or documents of a certain kind held by agencies covered by the law constitute a hole in our accountability and transparency frameworks. Such provisions have the effect of putting beyond usual access rights, all information held by an agency or all information that relates to a particular aspect of operations for 20 to 30 years until  records (might not will) emerge from archives. The case for such exclusions or exemptions regardless of other considerations needs to be strong and compelling

Legislation debated in the House of Representatives last week, the Courts Legislation Amendment (Judicial Complaints) Bill 2012, would provide a statutory basis for the relevant heads of court jurisdiction to deal with complaints about judicial officers and also to provide immunity from suit for those involved in the complaints handling process. It would also provide broad exclusions from FOI for documents that relate to the complaints handling processes within the Federal Court of Australia, the Family Court of Australia and the Federal Magistrates Court. Beyond a matter of fact mention in the Attorney General's second reading speech in March, and another by one of the seven speakers (Craig Kelly) on 28 June, no one thought the need to justify or query the amendment. 

The Explanatory Memorandum explains the machinery provisions [218-225] but the only justification offered is in the Statement of Compatability with Human Rights which suggests a major objective is to protect the "privacy and reputation" of those who handle a complaint:

25. The consideration and handling of complaints about judicial officers may give rise to sensitive or personal reports or other documents about a judicial officer or another person. These documents require a degree of confidentiality to avoid improper interference in the complaints handling process and the possibility of the damage to the reputation of a judge and the operation of the court before the investigation has been completed. The potential to disclose sensitive information concerning a judge’s performance of their judicial duties may undermine judicial independence and impact on future performance and discharge of the judicial function itself.
26. In excluding these documents from the FOI Act, the Bill advances human rights by protecting the privacy and reputation of those involved in internal handling of complaints about judicial officers within the courts.

Maybe, but that's all there is?

The existing s 5 limits application of the FOI act to documents held by the courts that relate to matters of an administrative nature. Presumably the advice is that existing exemptions aren't sufficient to protect whatever must be protected in the management and investigation of complaints. Belt and braces protection of this kind hasn't surfaced as an issue elsewhere. Why the courts need complete and all encompassing protection for complaint handling functions not available to other commonwealth agencies who get by with the standard exemptions when dealing with similar matters might be an interesting discussion.

There are weightier issues in contention as the bill and the companion piece, the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill await final passage in the House and go to the Senate where the Senate Legal and Constitutional Affairs Committee is to report by 13 July. 

But someone might ask about the FOI aspect. And get a compelling or not so compelling answer.