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Tuesday, December 17, 2013

High Court wraps Honours and Governor General's functions

The High Court in Kline v Official Secretary to the Governor General [2013] HCA 52) ruled that documents concerning the operation of the Honours system are not within scope of the Freedom of Information Act. The decision ends a long running legal tussle regarding interpretation and application of s 6A which places the Official Secretary's office (among its other support functions, it is the Australian Honours and Awards Secretariat) outside the operation of the act "unless the document relates to matters of an administrative nature."

The unanimous decision follows earlier decisions in this case to the same effect by the Freedom of Information Commissioner, the Deputy President of the AAT and the Full Court of the Federal Court. The law as it stands therefore is now well and truly settled. 

However some may struggle with the distinction made by the High Court and in the earlier decisions between a document held by the Office of Official Secretary concerning administration of the Order of Australia, not subject to FOI, and a document that relates to matters of an administrative nature undertaken by the office, which are subject to the act;  with the analogy drawn between the Governor General's functions and the judicial functions of the courts [45-47]; and with the view [53] that relevant "criteria for the making of awards are explained in the nomination form, which is a document that is available to the public."
(See what you think- Nomination form (pdf)).

The Court upheld the decision of the Full Federal Court in ruling that s 6A does not extend to documents concerning processes and activities associated with the exercise of the Governor General's substantive powers and functions.

In policy terms the decision raises the question whether section 6A delivers adequate and sufficient transparency and accountability regarding the Office of the Governor General. The office supports the Governor General in the exercise of her powers and functions which include representative in Australia of the head of state, President of the Federal Executive Council and Commander-in-Chief of the Australian Defence Force, as well as Chancellor of the Order of Australia. The window of FOI scrutiny is limited to matters of an administrative nature - except where they are associated with the exercise of the Governor-General's substantive powers and functions. For this reason for example working manuals, policy guidelines and criteria used in making Honours Award decisions are not publicly available.

In their joint judgement Chief Justice French and Justices Crennan, Kiefel and Bell relied upon
  • the context- attaching weight to the fact that the Governor General is not an agency or prescribed authority for the purposes of the act: "Thus the processes and activities of government, which are opened to increased public scrutiny by the operation of the FOI Act, do not include those associated with the exercise of the Governor-General's substantive powers and functions, many (even most) of which are exercised in public. Independence from government and the public is important in relation to the exercise of the various responsibilities of the Governor-General, including, but not limited to, the making of decisions. Furthermore, freedom from interference or scrutiny by members of the public (or other branches of government) is an essential aspect of the making of decisions in relation to the General Division of the Order. [34]
  • the words used in s 6A: observing that the common connotation of the words "matters of an administrative nature" mean documents which concern the management and administration of office resources [41].
  • and statements in relevant secondary materials: "In brief, s 6A(1) of the FOI Act, which was inserted in 1984, drew upon the language of ss 5(1) and 6, which were included in the FOI Act as originally enacted. In the relevant parliamentary debates, Senator Evans described the operation of ss 5 and 6 and explained their object. He said [70]:"courts, judicial offices, certain industrial tribunals and their registries..are not exempt from the operation of the[FOI]Act so far as their administrative procedures, properly so-called are concerned.[49]. The Senator went on to explain that the inclusion of ss 5 and 6 would secure a legitimate public interest in "efficient administration" and was not intended to intrude on the independence of the judiciary. [50]. 

In a separate judgement Justice Gageler after examining the history of s 6A and related matters in more detail reached the same conclusion: all requested documents relate to the "administration" of the Order of Australia," but none relates to matters of an "administrative nature" within the meaning of s 6A of the FOI Act. None, therefore, falls within the scope of the FOI Act." [79]  

    Both the judgments ([41] and [72]) conclude that Beinstein v Family Court of Australia [2008] FCA 1138; (2008) 170 FCR 382 was wrongly decided where it took a broader view of the meaning of "relates to matters of an administrative nature" in s 5 of the FOI act.


      1. Anonymous8:40 pm

        "In policy terms the decision raises the question whether section 6A delivers adequate and sufficient transparency and accountability regarding the Office of the Governor General."
        You know, I just don't see what the big deal is here - if the candidates are worthy of the honour then there should be no fuss about releasing the process-related documents (unless of course there is something to hide within that process that might appear unfavourable for the GG's office) It's a mystery isn't it - what's the big fuss about disclosure?!

      2. Indeed. But law and principle loom large in the inner circle.

      3. Decision widely criticised. Looks like legislative reform for 6A?