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Wednesday, July 04, 2012

Blanket FOI exclusion for federal courts complaint handling

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.

On the issue of blanket exclusions and exemptions Dr Johan Lidberg of Monash University writing for Civil Liberties Australia last month, said compared to international best practice Australian FOI law had too many blanket exemptions for agencies holding sensitive information such as the complete exclusion of ASIO, and a special lock up provision for cabinet notebooks for 50 years. In best practice laws, such as in the US and Sweden, there are no blanket exemptions.

Taking a look at judicial complaints investigation issues elsewhere, in NSW, the complaint handling, investigative and reporting functions of the Judicial Commission, are excluded from the GIPA act (Schedule 2 Clause 2) along with similar exclusions for a raft of other agencies, but not the courts.

The Commission however may refer some complaints to the relevant head of jurisdiction- where something similar to what is to happen in the federal courts takes place. While the judicial functions of the courts are excluded from the act (Schedule 2 Clause 1) no other special protections from disclosure apply. The courts have available the same array of public interest considerations against disclosure as any government agency. 

The federal government has rejected the idea that something along the lines of the NSW Judicial Commission is warranted. So another interesting comparative aspect doesn't arise:  the right of the attorney general to information about complaints received regarding a judicial officer. Section 37A  of the NSW Judicial Officers Act provides:
(1)  The Commission must, at the request of the Minister, provide the Minister with information that discloses the following in relation to a particular judicial officer:
(a)  whether a complaint has been made, when a complaint was made and when the matter about which a complaint was made is alleged to have occurred,
(b)  the subject-matter of the complaint,
(c)  the stage of the procedure for dealing with a complaint that the complaint has reached,
(d)  for a complaint that has been disposed of, the manner in which the complaint was disposed of.
(2)  However, the Commission is not required to provide information about a complaint against a particular judicial officer if the Commission considers it is not in the public interest to provide the information, unless the complaint has been referred to the Conduct Division.
(3)  The Commission must notify the Minister when a complaint about a judicial officer is referred to the Conduct Division and when and the manner in which such a complaint is disposed of (whether or not the Minister has requested information about the complaint).
(4)  The Commission may, when providing the Minister with information about a complaint against a judicial officer under this section, also provide other information that the Commission considers relevant.

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