FEDERAL COURT OF AUSTRALIA

Kline v Official Secretary to the Governor-General [2012] FCAFC 184

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The applicant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

The Court

Introduction

1    This appeal, on a question of law, is from a decision of the Administrative Appeals Tribunal (the Tribunal): Re Kline and Official Secretary to the Governor-General (2012) 127 ALD 639; [2012] AATA 247. The applicant, Ms Karen Kline, had applied under the Freedom of Information Act 1982 (Cth) (the FOI Act) for access to a number of documents held by the first respondent, the Official Secretary to the Governor-General. The documents in question relate to the Australian system of honours. The Official Secretary decided that the FOI Act did not apply to those documents by reason of s 6A of that Act. The Information Commissioner affirmed the decision under s 55K of the FOI Act. On 30 April 2012, the Tribunal affirmed the decision under review.

The statutory provisions

2    The central provision of the FOI Act is in the following terms:

6A Official Secretary to the Governor-General

(1)    This Act does not apply to any request for access to a document of the Official Secretary to the Governor-General unless the document relates to matters of an administrative nature.

(2)    For the purposes of this Act, a document in the possession of a person employed under section 13 of the Governor-General Act 1974 that is in his or her possession by reason of his or her employment under that section shall be taken to be in the possession of the Official Secretary to the Governor-General.

3    The major question in the appeal is the construction of s 6A of the FOI Act. If the Court holds that the Tribunal misconstrued that provision then it will be necessary for the matter to be remitted.

4    Sections 6 to 19 of the Governor-General Act 1974 (Cth) (the Governor-General Act), added by the Public Service Reform Act 1984 (Cth), provide a statutory basis for the office and functions of the Official Secretary. Section 6 is as follows:

6(1)    There shall be an Official Secretary, who shall be appointed by the Governor-General.

(2)    The Official Secretary, together with the staff employed under section 13, constitute the Office of Official Secretary to the Governor-General.

(3)    The function of the Office is to assist the Governor-General.

Section 13 provides:

13     The Official Secretary may, on behalf of the Commonwealth, employ, under an agreement in writing, a person as a member of the Governor-General’s staff.

By s 2A of that Act, the reference in s 6 to the Governor-General is to be construed as a reference to the Governor-General acting with the advice of the Executive Council.

5    The context of s 6A of the FOI Act is provided by considering first s 11 of that Act, which provides that every person has a legally enforceable right to obtain access in accordance with the Act to a document of an agency, other than an exempt document. By s 4(1), “agency” means a Department or a prescribed authority. “Prescribed authority” means, relevantly the person holding, or performing the duties of, an office established by an enactment. It was common ground that the Official Secretary was, therefore, a prescribed agency.

6    The Public Service Reform Act 1984 (Cth), added, by Part VI, the relevant provisions to the Governor-General Act and, by s 154, s 6A of the FOI Act. The explanatory memorandum said that the Governor-General Act was to be amended to provide a legislative basis for the office of Official Secretary, to provide for the employment of staff of the Governor-General, and for related purposes. It said that at present the Official Secretary and other staff were Australian Public Service officers and employees who were seconded to the Governor-General’s staff from the Department of the Prime Minister and Cabinet. It was said that the amendments were broadly similar to those that were proposed for Ministerial and electorate staff under the Members of Parliament (Staff) Bill. These were said to be technical provisions and provisions providing for separate employment arrangements for staff of the Governor-General.

7    Before that legislation was enacted the position under the FOI Act for documents such as the present was that the Act did not apply to the Governor-General as such as that office did not fall within the definition of a prescribed agency. After that legislation the present position applied, the change being that documents in the possession of the Official Secretary to the Governor-General relating to matters of an administrative nature no longer stood outside the FOI Act. It is unnecessary to resolve the question whether, before 1984, access could have been obtained under the FOI Act to any documents of the Governor-General if they had been in the possession of a Department or a prescribed authority.

The Order of Australia

8    The Constitution of the Order of Australia, as set out in the schedule to the Letters Patent dated 14 February 1975, as amended, was in evidence before the Tribunal.

9    The relevant provisions are as follows:

Officers of and Council for the Order of Australia

2(1)    The Governor-General of the Commonwealth of Australia shall be the Chancellor of the Order and the Principal Companion in the General Division.

…

3    The Chancellor is charged with the administration of the Order.

4(1)     There shall be a Council for the Order, hereinafter called “the Council” …

5    The Council shall—

(a)    consider nominations of Australian citizens for appointment to the Order and for the award of the Medal of the Order;

(b)    make recommendations to the Governor-General in relation to those nominations; and

(c)    advise the Governor-General on such other matters concerning the Order as the Governor-General may refer to the Council for consideration.

…

6(1)     There shall be a Secretary of the Order who shall be appointed by the Governor-General.

(2)     The Secretary shall maintain the records of the Order and of the Council and shall perform such other functions in respect of the Order as the Governor-General directs.

7    The Governor-General may appoint such other officials for the Order as are, in the Governor-General's sole discretion, considered to be necessary for the purpose.

…

Appointments and Awards

9    Appointments (including honorary appointments) to the Order and awards of the Medal of the Order shall be made, with the approval of The Sovereign, by Instrument signed by the Governor-General and sealed with the Seal of the Order.

10    Nothing in this Constitution limits the right of the Governor-General to exercise all powers and authorities of The Sovereign in respect of the Order.

…

Nominations

19(1)    Any person or organisation may submit to the Secretary of the Order for consideration by the Council a nomination of an Australian citizen for appointment to the Order as a member in the General Division or a nomination of the person for the award of the Medal of the Order in the General Division.

…

10    The evidence was that from at least 1994 onwards, the actual approval of the Order has been made by the Governor-General, but the list of those appointed or awarded in the Order is, as a matter of courtesy and information, laid before the Sovereign.

11    In more detail, when a nomination for the making of an appointment and award in the Order of Australia is received by the Australian Honours and Awards Secretariat (part of the Honours and Awards Branch of the Office of the Official Secretary to the Governor-General), the nomination is registered, an acknowledgement sent to the nominator, and then Secretariat staff conduct further research and contact relevant referees, both those suggested by the nominator and those sourced directly by the Secretariat. The purpose of the research is to confirm and verify information supplied by the nominator and to provide additional information that may be relevant to the Council, for its consideration. Once research is completed, nominations are presented to the Council for consideration. Papers are sent to the Council before the meetings which are held twice a year. The outcome of a nomination can either be an appointment or award recommended, no appointment or award recommended or deferral of the nomination for consideration at a later meeting. The Council makes recommendations for appointments and awards to the Governor-General as Chancellor of the Order of Australia. Once the Governor-General has considered and decided those to be appointed or awarded in the Order, congratulatory letters are sent to the successful recipients. Each Australia Day and on the Queen’s Birthday an honours list is gazetted in the Commonwealth of Australia Gazette and the awards are publicly announced. There was evidence that the Secretariat staff used a manual to assist them in their work.

The requests under the FOI Act

12    The applicant nominated a person for appointment to the Order of Australia in 2007 and 2009. Each nomination was unsuccessful. The requests under the FOI Act were for access to documents answering the following description:

1.     My nomination dated 31 March 2007 of [the nominee] for an Order of Australia. This includes the nomination form and all accompanying material i.e. testimonial, newspaper articles and referee details. A list of which of my nomination documents were presented to Council August 2008.

2.     My 2009 nomination of [the nominee] for an Order of Australia. This includes nomination forms and accompanying material sent in 2009 and 2010 i.e. journal articles, referee reports, submissions and updates. All correspondence held by the Official Secretary in relation to this nomination. A list of which of my nomination documents were presented to Council August 2010.

3.    Working manuals, policy guidelines and criteria related to the administration of awards within The Order of Australia.

4.     Documents relating to review processes i.e. right of appeal in cases of maladministration.

5.     All file notes from the Secretariat contained in my nominations of 2007 and 2009.

The references to the Council are to the Council of the Order of Australia under the Constitution of the Order.

13    The Official Secretary’s decision in response to the application said some of the documents requested by the applicant (specifically the list of which of the applicant’s nomination documents that were provided to the Council in August 2008 and August 2010) did not exist. In relation to the balance of the applicant’s request he said: “I have identified no documents relating to matters of an administrative nature”. The response also said that the applicant would be provided, outside the FOI Act, with one copy of each of her nominations, i.e. the nomination forms and documents the applicant provided to the Office in support of the nominations, adding that those documents did not relate to matters of an administrative nature and were therefore not subject to the FOI Act.

The Tribunal’s decision

14    The procedure adopted was that the Tribunal did not scrutinise the documents in detail; the Tribunal determined whether the categories of documents identified in the applicant’s requests were documents that related to “matters of an administrative nature”. If the documents did not answer that description, that would be an end of the matter and the decision would be affirmed, but if the exemption in s 6A(1) did not extend to a document or documents, it would be necessary to consider at a further hearing whether those documents were exempt from production by virtue of some other provision of the FOI Act.

15    The Tribunal said the documents generated in connection with the conferral of honours did not ordinarily relate to matters of an administrative nature: they related to substantive functions of the Governor-General. While it was possible to conceive of exceptions to this general proposition (correspondence with a supplier of medals and insignia, or with a caterer providing refreshments at the awards ceremony were referred to), the documents in question did not relate to that sort of matter. The Tribunal saw an analogy in the decision in Bienstein v Family Court of Australia (2008) 170 FCR 382. The Tribunal asked whether particular documents held by the Official Secretary related to matters that were connected with the exercise of the Governor-General’s function in circumstances where the proper exercise of that function would be hampered or compromised by disclosure.

16    The Tribunal said that a small number of documents held by the Official Secretary fell within the categories identified by the applicant and at issue in the case. The documents in question squarely related to the operation of the system of honours. The Tribunal did not accept those documents, or any part of them, answered the description of a “document [that] relates to matters of an administrative nature” within the meaning of s 6A of the FOI Act.

Consideration

17    We begin with the terms of s 6A of the FOI Act. First, the section deals with whether or not the Act applies, although it is clear that some parts of the FOI Act, including the review provisions, do apply whatever is the better construction of the section. Second, the section proceeds by reference to the request for access. Third, it being common ground here that the requests for access were to documents of the Official Secretary, the question becomes whether the requests were for access to documents of the Official Secretary that relate to matters of an administrative nature.

18    The Court was taken to the objects of the FOI Act, which are in the following terms:

3 Objects—general

(1)    The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth or the Government of Norfolk Island, by:

(a)    requiring agencies to publish the information; and

(b)    providing for a right of access to documents.

(2)    The Parliament intends, by these objects, to promote Australia’s representative democracy by contributing towards the following:

(a)    increasing public participation in Government processes, with a view to promoting better-informed decision-making;

(b)    increasing scrutiny, discussion, comment and review of the Government’s activities.

(3)    The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.

(4)    The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.

However, as Gleeson CJ said in Carr v Western Australia (2007) 232 CLR 138:

[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.

19    Context is especially important when considering the word “administrative”. Plainly, the point of distinction in the present context is not between matters of a judicial nature or matters of a legislative nature. Thus, in our view, little assistance is to be gained from authorities such as Burns v Australian National University (1982) 40 ALR 707; (1982) 61 FLR 76 per Ellicott J, which have considered the meaning of the expression “a decision of an administrative character” for the purposes of s 3(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Likewise, little assistance is to be derived from the decision in Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463 which concerned the meaning of “reasonable administrative action” in the definition of “injury” in s 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

20    Similarly, it is a distraction to proceed solely by reference to the term “prerogative”, although this particular case involves the grant of honours, a power or function which Lord Roskill listed among prerogative powers in Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 at 418. Section 6A of the FOI Act does not look to the source of the power or function but, implicitly, to the person exercising the power or function, namely the Governor-General. The provision is to be construed against that background and by reference to its terms, that is, the FOI Act applies only to requests for access to a document of the Official Secretary where the document relates to matters of an administrative nature: the FOI Act does not apply to requests for access to a document of the Official Secretary of any other character.

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.

24    We do not consider it necessary to consider whether the proper exercise of that power or function would be hampered or compromised by disclosure. We see only a faint analogy in the decision in Bienstein v Family Court of Australia (2008) 170 FCR 382 (Bienstein). Otherwise we agree with the conclusion of the Tribunal.

25    Some reference was made in submissions to the use of the expression “matters of an administrative nature” in s 5 of the FOI Act in relation to courts and in s 6 of the same Act in relation to certain tribunals.

26    As to the former provision, in Loughnan v Altman (1992) 39 FCR 90 at 93-94 the Full Court said:

The effect of s 5 is that the Act does not apply at all to any requests for access to a document of the court unless the document relates to matters of an administrative nature. The focus is on the request and, in respect of some requests, the Act will simply have no application. The exclusion of the application of the Act to a request for access to a document of a court unless the document relates to matters of an administrative nature, read in the light of the stated object in s 3, reflects the view that an exception or exemption is necessary in such a case for the protection of an essential public interest.

In our view the same observation applies to s 6A, notwithstanding that the history of s 6A is different to the history of s 5 and the exception in s 6A is referable to a different and distinct public interest.

27    We have referred above to Bienstein, another decision dealing with s 5 of the FOI Act. To the extent that the Court there suggested, at [78], that it would be necessary to test each document against the underlying purpose of the provision we would, with respect, disagree. While the purpose informs the construction of the provision it is the provision itself which is to be applied in each case to the facts.

28    One question which arose in the course of argument was whether the expression “document of the Official Secretary” in s 6A was limited to documents in the possession of that official. In our view, the expression is not so limited. The scope of the section would be so limited if the definition of “document of an agency” in s 4(1) applied, as it does in s 11(1), but that expression is not used in s 6A so the definition does not apply. The consequence is that s 6A would apply even where the document of the Official Secretary was in the possession of another agency.

29    In the present case was it sufficient for the Tribunal to determine whether the categories of documents identified in the applicant’s requests were documents that related to “matters of an administrative nature”? In our view it was sufficient: the character of the documents was apparent from the terms of the request.

Orders

30    In our opinion, the appeal should be dismissed with costs.

Associate:

Dated:    19 December 2012