FEDERAL COURT OF AUSTRALIA
Bienstein v Family Court of Australia [2008] FCA 1138
FREEDOM OF INFORMATION – documents of a court – whether documents requested relate to matters of an administrative nature – test for determining whether a document relates to matters of an administrative nature – obligation of decision-maker in applying test
ADMINISTRATIVE LAW – Administrative Appeals Tribunal – powers and functions – whether Tribunal can compel reconsideration of a decision where original decision-maker does not adhere to its original decision – role of Tribunal in encouraging settlement between parties – whether delay in Tribunal proceeding amounts to error of law
WORDS AND PHRASES – “relates to matters of an administrative nature”
Acts Interpretation Act 1901 (Cth) s 15AA, 15AB
Administrative Appeals Tribunal Act 1975 (Cth) ss 37(1), 44(1), 42C, 42D
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3(1), 5(1)(d)
Courts and Tribunals Administration Amendment Act 1989 (Cth)
Family Law Act 1975 (Cth) Pt IVA
Federal Court of Australia Act 1976 (Cth) Pt IIA
Freedom of Information Act 1982 (Cth) ss 3, 4(1), 5, 6, 11, 14, 15, 18, 20, 22, 24, 55, 58(1), Sch 1
Freedom of Information Bill 1981 (Cth) cll 4, 5
High Court of Australia Act 1979 (Cth) Pt III, s 17(1)
Family Law Rules O 5 r 6
Federal Court Rules O 46 r 7A
Acts Interpretation Act 1954 (Qld) s 25(1)
Criminal Code (Qld) ss 30, 119B
Freedom of Information Act 1992 (WA)
Magistrates Act 1991 (Qld) ss 10, 21A
Bienstein and Family Court of Australia [2006] AATA 385 (2006) 43 AAR 34 cited
Bizuneh v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 42 (2003) 128 FCR 353 distinguished
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 cited
Fingleton v The Queen [2005] HCA 34(2005) 227 CLR 166 discussed
Legal Aid Commission of Western Australia v Edwards (1982) 42 ALR 154 distinguished
Letts v Commonwealth (1985) 8 FCR 585 distinguished
Loughnan (Principal Registrar, Family Court of Australia) v Altman (1992) 39 FCR 90 discussed
MacKeigan v Hickman [1989] 2 SCR 796 cited
Paramasivam v Randwick City Council [2005] FCA 369 distinguished
Paramasivam v Randwick City Council (No. 2) [2005] FCA 508 distinguished
Re Altman and Family Court of Australia (1992) 27 ALD 369 cited
Re Bartucciotto and Guardianship and Administration Board [2004] WAICmr 16 not followed
Re Michael Bartucciotto and State Administrative Tribunal [2006] WAICmr 9 not followed
Re O’Sullivan and Family Court of Australia (1997) 47 ALD 765 cited
Re Simring and High Court of Australia [2006] AATA 849 (2006) 44 AAR 103 discussed
Valente v The Queen [1985] 2 SCR 673 cited
HELEN BIENSTEIN v FAMILY COURT OF AUSTRALIA
VID 615 of 2006
GRAY J
5 AUGUST 2008
MELBOURNE
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| VICTORIA DISTRICT REGISTRY | VID 615 of 2006 |
| ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR G D FRIEDMAN, SENIOR MEMBER |
| BETWEEN: | HELEN BIENSTEIN Applicant
|
| AND: | FAMILY COURT OF AUSTRALIA Respondent
|
| GRAY J | |
| DATE OF ORDER: | 5 AUGUST 2008 |
| WHERE MADE: | MELBOURNE |
THE COURT ORDERS THAT:
1. The appeal be allowed.
2. The decision of the Administrative Appeals Tribunal, made on 10 April 2006, affirming the decision of the respondent to refuse the applicant’s application for access to documents under the Freedom of Information Act 1982 (Cth), be set aside.
3. The matter be remitted to the Administrative Appeals Tribunal, to be heard and decided again.
4. The respondent pay the applicant’s costs of the proceeding.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
| IN THE FEDERAL COURT OF AUSTRALIA |
|
| VICTORIA DISTRICT REGISTRY | VID 615 of 2006 |
| ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY MR G D FRIEDMAN, SENIOR MEMBER |
| BETWEEN: | HELEN BIENSTEIN Applicant
|
| AND: | FAMILY COURT OF AUSTRALIA Respondent |
| JUDGE: | GRAY J |
| DATE: | 5 AUGUST 2008 |
| PLACE: | MELBOURNE |
REASONS FOR JUDGMENT
The nature and history of the proceeding
1 The central issue in this proceeding concerns the meaning of the phrase “relates to matters of an administrative nature”, describing a document, in s 5 of the Freedom of Information Act 1982 (Cth) (“the FOI Act”). Section 5 has the effect of requiring a court created under Ch III of the Constitution to respond to requests for documents under the FOI Act, except that the FOI Act does not apply to any request for access to a document of the court unless the document relates to matters of an administrative nature.
2 The applicant made a request to the respondent, a court created under Ch III of the Constitution, for certain documents. The respondent declined to grant that request. The applicant’s request for internal review of the decision was granted, but the decision was affirmed after internal review. The applicant then sought review of the respondent’s decision by the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal’s decision was to affirm the decision under review. The decision and reasons for decision, which are designated as Bienstein and Family Court of Australia [2006] AATA 385 (2006) 43 AAR 34, were given on 10 April 2006. The applicant appealed to this Court from that decision of the Tribunal. By s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”), a party to a proceeding before the Tribunal may appeal to this Court from a decision of the Tribunal in that proceeding, but the right of appeal is limited to a question of law.
The legislation
3 The object of the FOI Act is set out clearly in s 3:
(1) The object of this Act is to extend as far as possible the right of the
Australian community to access to information in the possession of the
Government of the Commonwealth by:
(a) making available to the public information about the
operations of departments and public authorities and, in
particular, ensuring that rules and practices affecting members
of the public in their dealings with departments and public
authorities are readily available to persons affected by those
rules and practices; and
(b) creating a general right of access to information in
documentary form in the possession of Ministers, departments
and public authorities, limited only by exceptions and
exemptions necessary for the protection of essential public
interests and the private and business affairs of persons in
respect of whom information is collected and held by
departments and public authorities; and
(c) creating a right to bring about the amendment of records
containing personal information that is incomplete, incorrect,
out of date or misleading.
(2) It is the intention of the Parliament that the provisions of this Act shall
be interpreted so as to further the object set out in subsection (1) and
that any discretions conferred by this Act shall be exercised as far as
possible so as to facilitate and promote, promptly and at the lowest
reasonable cost, the disclosure of information.
4 Section 5 provides:
For the purposes of this Act:
(a) a court shall be deemed to be a prescribed authority;
(b) the holder of a judicial office or other office pertaining to a court in
his or her capacity as the holder of that office, being an office
established by the legislation establishing the court, shall be deemed
not to be a prescribed authority and shall not be included in a
Department; and
(c) a registry or other office of a court, and the staff of such a registry or
other office when acting in a capacity as members of that staff, shall
be taken as a part of the court;
but this Act does not apply to any request for access to a document of the court unless the document relates to matters of an administrative nature.
5 Section 4(1) contains definitions. For present purposes, it is unnecessary to go to the detail of the definition of “prescribed authority”, but it is important to be aware that the word “agency” is defined as meaning a Department, a prescribed authority or an eligible case manager.
6 It is perhaps also significant that s 6 of the FOI Act makes provision in terms very similar to the terms of s 5, including the phrase “relates to matters of an administrative nature”, with respect to certain tribunals, authorities or bodies specified in Sch 1. The bodies currently specified are the Australian Industrial Relations Commission, the Industrial Registrar and Deputy Industrial Registrars, and the Australian Fair Pay Commission.
7 Section 11 of the FOI Act is the basis of the right to obtain access to documents:
(1) Subject to this Act, every person has a legally enforceable right to
obtain access in accordance with this Act to:
(a) a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt
document.
(2) Subject to this Act, a person’s right of access is not affected by:
(a) any reasons the person gives for seeking access; or
(b) the agency’s or Minister’s belief as to what are his or her
reasons for seeking access.
8 Section 14 provides:
Nothing in this Act is intended to prevent or discourage Ministers and agencies from publishing or giving access to documents (including exempt documents), otherwise than as required by this Act, where they can properly do so or are required by law to do so.
9 Section 15 provides that a person wishing to obtain access to a document of an agency may request access to the document, and imposes certain requirements on the request, including that it be in writing and provide such information concerning the document as is reasonably necessary to enable a responsible officer to identify it. There is also provision for a fee to be imposed by regulations. Section 18 requires that, where a request is made in accordance with the requirements of s 15(2), and any fee required under the regulations has been paid, the person making the request is to be given access to the document requested in accordance with the FOI Act. Section 18(2) excludes from this requirement exempt documents. Section 20 specifies the ways in which access to documents may be given, including, by s 20(1)(b), the provision of a copy. Section 22 relates to the deletion of exempt matter or irrelevant material. In either case, the person making the request can be given a copy with deletions, so as to prevent the document from being an exempt document or from disclosing irrelevant information. Section 24 relates to the refusal of a request on the basis that compliance with it would involve the excessive use of resources. Part IV of the FOI Act deals in detail with exempt documents. The provisions relating to applications to the Administrative Appeals Tribunal for review are found in Part VI. Section 55 gives the Tribunal power to review decisions of the kinds specified, including, by s 55(1)(a), “a decision refusing to grant access to a document in accordance with a request”. By s 58(1), the Tribunal’s decision has the same effect as a decision of the relevant agency.
The facts
10 The Tribunal’s findings of fact in its reasons for decision are sparse. To understand some of the submissions made by the applicant to the Court, it is necessary to set out something of the history of the manner in which the applicant’s request was dealt with both by the respondent and by the Tribunal.
11 The applicant’s request was made by facsimile transmission on 5 September 2003. The request covered “all documents relating to the case management of my Family Court matters on file BIENSTEIN ML7725 of 1991 and related Appeal actions.” The applicant also sought remission of fees and charges on the basis of financial hardship.
12 By letter dated 8 September 2003, an officer of the respondent informed the applicant that she had decided to remit the fee in respect of the application but that:
As a person authorised under Section 23 of the Freedom of Information Act 1982 to make decisions pursuant to the Act, I advise that I am unable to release to you a copy of the documents you have requested, as these documents do not relate to matters of an administrative nature.
13 The letter then set out in full s 5 of the FOI Act and then continued:
Case files are legal documents and, therefore, are exempt by section 5 of the Act. However, Order 5, Rule 6 of the Family Law Rules allows the Court or a Registrar to authorise a person to inspect a file.
14 The letter then set out the provisions of O 5 r 6 of the Family Law Rules (“the Family Law Rules”) and informed the applicant of her right to have the decision reviewed.
15 By facsimile transmission dated 11 September 2003, the applicant applied for internal review of the decision. In particular, she contested the proposition that case management records did not relate to matters of an administrative nature, contending that case management is the administration of cases that come before the court and that it followed that case management records relate to the court’s administrative functions. She also applied again for remission of any fees.
16 By letter dated 18 September 2003, another officer of the respondent informed the applicant of the decision to remit the fee. The decision to refuse access to the documents requested was affirmed on the basis that, in this officer’s assessment, “the document/s you are requesting are not administrative in nature, but are court, or court-related, document/s.”
17 The applicant’s application to the Tribunal for review of the respondent’s decision is dated 24 September 2003.
18 By letter dated 2 October 2003, the respondent advised the applicant that it had forwarded to the Tribunal the statement and documents required by s 37(1) of the AAT Act. Under the heading “Findings of Fact”, the statement contained the extraordinary proposition that the decision of 8 September 2003 to refuse access to the requested documents “was based on advice, received by the Family Court on 17 October 2003 from the Australian Government Solicitor, in relation to what constitutes administrative and court documents for the purposes of consideration within Administrative Law.” Under the heading “Reasons for Decision”, appeared the proposition that the documents requested were “exempt documents” pursuant to s 5 of the FOI Act. At several points in the statement, references are made to the alternative method of access being offered to the applicant, pursuant to the Family Law Rules.
19 By letter dated 5 December 2003, an officer of the respondent forwarded to the applicant by way of service the respondent’s statement of facts and contentions. The letter noted that the respondent would not be filing a schedule of documents as to which it objected to access, or affidavit material going to the grounds of such objection, because it had elected to make no objection to the access sought. Rather, the respondent sought orders allowing access in terms which accorded with both the FOI Act and the Family Law Rules. The letter invited the applicant to agree to orders proposed by way of amicable settlement. The respondent’s statement of facts and contentions went into some detail as to what was permitted by O 5 r 6 of the Family Law Rules and as to how this was said to fit within the obligations of the respondent under the FOI Act.
20 On 11 December 2003, the Tribunal conducted a directions hearing by telephone. The outcome of that directions hearing was that the Tribunal directed that the respondent file and serve an amended statement of facts and contentions, setting out details of searches made for documents relating to the case management of the applicant’s files claimed by the applicant to exist and to be relevant to her application.
21 In a facsimile dated 4 January 2004, the applicant informed the Tribunal that she was not interested in settling the Tribunal proceeding on the basis proposed by the respondent. She provided further particulars of the documents she sought, to assist the respondent to make its searches. The particulars made reference to: correspondence from the respondent’s registries to the applicant about management of her cases; various lists of cases and a “trial pool”, records of which were held by the case management section of the registry; electronic records of documents filed in each of the applicant’s matters; daily hearing lists on which the applicant’s matters appeared; records of documents being filed in the applicant’s cases; an index on the front cover of each court file to all the documents filed; intra-court records of communications about the applicant’s matters, including emails, notes, faxes etc; records created as a result of orders of the Full Court of the Family Court on 30 June 2000, remitting the applicant’s maintenance application and costs applications for hearing by a single judge other than a named judge; and documents showing steps taken to give effect to those orders. The applicant denied having received notice of decisions at hearings on 19 December 2000, 31 January 2003 and 23 May 2003. She referred to information given to her in a letter dated 1 May 2003 from the case flow manager, which she said indicated the case management records were kept in the respondent’s registry and were able to be accessed readily by the case flow manager. The applicant sought access to those records. She also contended that, when a matter is listed for hearing, there must be a record created as to the nature and purpose of the hearing and of the matters with which it would deal. She sought access to such records, most importantly to those that related to hearings after the orders of 30 June 2000, including the hearings on 19 December 2000, 31 January 2003 and 23 May 2003. The applicant expressed the hope that the examples she had given would convince the Tribunal and the respondent that case management documents existed outside the respondent’s case files and that they would make the ambit of her request clear enough for the respondent to conduct appropriate searches.
22 The respondent’s amended statement of facts and contentions, dated 20 January 2004, referred specifically to s 14 of the FOI Act. It contained the following contention:
Documents that do not relate to the case management of the matters identified by the Applicant in her request do not fall within the scope of the Applicant’s request. Intra Court communications and other documents about her matters will not fall within the scope of the Applicant’s request unless they relate to the case management of those matters.
It would be open to the Respondent to claim exemption from production of the documents that are sought by the Respondent [sic] on the basis that they are not documents of an administrative nature. This is because the Freedom of Information Act 1982 applies to the Respondent’s documents of an administrative nature but not to its other documents. However, in these proceedings, the Respondent is not compelled to, and does not, raise such a claim for exemption as to any of the documents properly falling within the Applicant’s request for access in this matter.
23 The statement also contained the following information:
Documents in relation to the case management of the Applicant’s matters before the Court, including her appeals, are contained in the various matter, or Registry and Appeal, files maintained by the Respondent and in papers associated with those files. The Respondent also holds electronic records with which it deals separately below. In relation to matters on appeal, associated with the files held by the Court is a folder of more general appeal communications – that is, communications which relate to more than one appeal brought by the Applicant. The Court has not maintained separate files in relation to, or, so far as it is aware, containing documents in relation to, the case management of the Respondent’s matters before the Court that are distinct from the registry and appeal files.
In order to assist the Applicant and the Tribunal, the Respondent will now seek to explain what has occurred in relation to particular documents and records, but within the context of the records retained by the Court as set out above.
The matter files maintained by the Respondent contain available details of listings, answers to specific questions relating to her files and like documents. They have been available for inspection by the Applicant and remain available to her for that purpose.
So far as the Respondent is aware after inquiry of its relevant staff, copies of e-mails exchanged with Judges seeking a specific listing or when settling Full Court Lists have not been retained routinely and, if retained at all, will be found on the matter files. Similarly, details and/or copies of e-mails & memos to Court Officers, List Clerks and Judges Associates in relation to distribution and conduct of the list in relation to appeals have also so far as the Court is aware, not been retained. The appeal file contains information retained by the Respondent relevant to the case management of the Appeal.
In relation to Case Management Meetings, the Applicant may consider minutes of the meeting in which it was decided to appoint a Judge Manager to her matter as falling within the scope of her request. No formal minutes of these meetings are usually retained. For the period of 1997 and 1998 there are some informal minutes. The associate for the judge who retained the notes has searched these. The notes were not found to contain any reference to the matter of Bienstein.
Records of Pending Pre Hearing Conference and/or Trial Pools were held electronically, up-dated daily and printed at various random times. These lists generally related to over 500 matters at any time. Copies of each list were not retained. They are progressive management tools and from time to time are retained in contemporaneous form.
Within its Melbourne Registry, the Respondent holds in hard copy the daily law lists since 1985. Because of the number of lists to be inspected, it has not sought to inspect each list to ascertain when any of the Applicant’s matters were listed.
The information contained in daily law lists and similar lists is the same information on file but in a different format. The Respondent does not have records which show details such as that on the 1st day of one month, her case was matter number 200 in a list of 500 and that on the 1st day of the following month it was matter number 130.
When Mrs Bienstein made the Request for access, the Respondent’s Officers responsible for such requests sought Mrs Bienstein’s Registry files from the Respondent’s relevant Registry Manager, through her personal assistant. Files relating to the appeals were sought from the Appeals Registrar in the Melbourne Registry of the Respondent. All files were made available.
Subsequently, the responsible Court officer has made enquiries of various staff members for other documents (such as Case Management Minutes, Daily Law Lists, Trial Pools etc) with the results set out above.
24 The statement also contained the following matters relating to facts:
The Court does not keep electronic copies of documents filed in proceedings. Melbourne Family Court introduced the ‘Blackstone’ electronic records system in August 1992. All filings were then recorded in Blackstone. This electronic system was maintained until May 2002. At that time ‘CaseTrack’ was introduced. All information in the Blackstone system was transferred to CaseTrack. CaseTrack is the Respondent’s listing system. As such its primary aim is to provide a chronology of filings and court events and outcomes related to each matter. All staff with in [sic] the court can access these records which are used for both to record matters and to respond to correspondence where necessary. A client services staff member enters all filings. Other staff, such as Deputy Registrars and Judicial Associates, enter outcomes and update client details as the matter progresses. The records detail matters such as:
(a) parties to the file and their DOB;
(b) address for service of each party;
(c) legal representatives of parties;
(d) dates for court events scheduled as well as retaining dates when
matters were listed and heard;
(e) dates of all applications lodged;
(f) outcomes from each court event;
(g) list cause of action; and
(h) notes for booking specific support required such as interpreters and
security.
When a matter reaches the stage of awaiting a Trial Notice (the ‘pool’) it simply waits in CaseTrack until it reaches a time that a judge is available to hear a case. Listing staff monitor cases in the pool and schedule as they appear chronologically.
The Respondent has undertaken a search of the CaseTrack record for documents that may fall within the scope of the Applicant’s request. It has identified some 644 pages of records, which are available in electronic form.
25 The respondent conceded that it was proper for the respondent to make the 644 pages of records that it had identified in its CaseTrack system available to the applicant in electronic form. The amended statement of facts and contentions referred again to O 5 r 6 of the Family Law Rules, and suggested that, under s 20 of the FOI Act, access to these documents could be given to the applicant by her being given a copy of the 644 pages of documents in electronic form, translated into a Microsoft word document, and the opportunity to inspect the files on which hard copy documents were located, coupled with the provision of copies of such documents from the files as the applicant identified and which fell within the scope of her request. If the applicant were not to accept this, the respondent sought an opportunity to calculate what might be the cost of further work to satisfy her request.
26 In response to these contentions, the applicant made detailed written submissions, pointing out what she regarded as the inadequacy of what the respondent proposed. She contended that s 14 was irrelevant, because she chose not to rely on “this voluntary and unenforceable provision.” She referred to the claim that case management documents are exempt under s 5 of the FOI Act and explicitly recognised that the respondent was “at liberty to argue such proposed exemptions before the Tribunal.” In the course of her submissions, the applicant further narrowed her request “to cover only the BIENSTEIN Melbourne Registry matters in ML7725/91 and only for the limited period from 30/06/00 to the present.” She specified the documents she thought she should be entitled to obtain without charge.
27 By letter dated 18 February 2004, an officer of the respondent wrote to the applicant, making specific proposals for the provision of documents and for the inspection of them, in an attempt to settle the proceeding. Attached to the letter was a very substantial list of the documents that searches within the respondent had located.
28 Thereafter, there appears to have been a substantial delay before anything occurred in relation to the matter in the Tribunal. A letter from the Tribunal to the applicant, dated 11 May 2005, suggests that this may have been partly due to the applicant seeking extensions of time and adjournments of a number of her matters before the Tribunal, due to her ill health. The matter was listed for a telephone directions hearing on 12 July 2005. On 20 July 2005, an officer of the respondent wrote a long, detailed letter to the applicant, again seeking to resolve the matter. Again, a detailed index of files and list of documents was attached to the letter. On 21 July 2005, there was another letter from the respondent, stating that attached to it was approximately 640 pages of print-outs, said to meet the requirements concerning a document held electronically. A further telephone directions hearing, listed for 11 August 2005 was vacated and re-listed on 16 August 2005. On 15 August 2005, in response to a letter from the respondent informing her that the respondent had asked the Tribunal to defer that directions hearing, the applicant sent a facsimile to the Tribunal asserting her right to have the arguments put to the Tribunal at hearing for decision and stating that she did not agree to settling the matter outside that process and would not agree to give up her rights to have matters aired in public. She opposed the request for an adjournment of the directions hearing. At the directions hearing on 16 August 2005, the Tribunal directed that, on or before 5 September 2005, the applicant file with the Tribunal and serve on the respondent a written response to the respondent’s correspondence dated 20 July 2005.
29 On 12 September 2005, the respondent’s relevant officer wrote another letter to the applicant. It is fair to describe this letter as urging very strongly that the applicant settle the proceeding on the terms offered.
30 In a facsimile dated 16 September 2005 to the Tribunal and the respondent, the applicant said this:
The Respondent’s initial decision was to refuse access on my request on the grounds that Case Management documents were not “administrative” and therefore fell within the s5 exclusion. This was affirmed on internal review and I took that decision on appeal to the Tribunal. Tribunal sent out s29 Notice of proceeding V03/1055, informing the Family Court of Australia that it is Respondent to the application and as such is required to file and serve its s37 documents, being the Respondent’s case in defence of the action. The s37 statement argued the Respondent’s previously stated position; that the Court was exempt in relation to case management documents. But it showed no conviction at all on the issue and submitted to Tribunal’s jurisdiction without ever seeking a ruling in this regard. I note that the Tribunal asserting its jurisdiction in the matter without hesitation.
And yet, despite my best efforts and persistent requests for relevant Directions the matters properly in dispute in these FOI proceedings get sidelined. The Respondent has been permitted to canvass irrelevant issues and been encouraged by the Tribunal in its various attempts to get the matter out from this jurisdiction. I am the Applicant and I have a right to have the matter proceed in accordance with the will of Parliament and relevant directions of the Tribunal’s President which, if followed, would have seen to it that the Respondent produced without undue delay what the statutes so clearly require, ie a Reasoned Decision on the Request with an account of how and why it conducted its searches as it did and the basis for it being satisfied that it has uncovered all of the documents within scope of the request. Objective, documentary evidence in support of the Respondent’s account and of its findings must be provided with its statement to the Tribunal under s37 AAT Act within just 28 days of receiving notice from the Tribunal of the legal action.
Let there be no doubt or misunderstanding about my intention to prosecute this matter, as is my right, under the jurisdictional umbrella of an independent Administrative Appeals Tribunal. Indeed, I am keen to progress this matter but only if the progress is made in accordance with relevant statutes and, no matter how much the Respondent wishes it were otherwise, I will not agree to step foot outside the Tribunal’s jurisdiction. It is my right to have this matter proceed in the Tribunal and to have it resolved by decision of the Tribunal, and I intend to continue agitating the matter within that arena.
31 The applicant then went on to complain about the Tribunal’s direction of 16 August 2005, and about the Tribunal’s approach in directing the parties to correspond directly with one another.
32 The proceeding was finally listed for hearing in the Tribunal on 10 April 2006. The applicant did not appear. She did not seek an adjournment, and the hearing proceeded in her absence. The officer appearing for the respondent first submitted to the Tribunal that the proceeding could be resolved by the respondent giving an undertaking that, if the applicant informed the respondent which, if any, of the documents listed on the index that had been provided to her she wished to see, the respondent would provide those documents to her, regardless of their character. The second submission made was that the applicant’s failure to accept the access to documents that had been offered rendered the proceeding vexatious and an abuse of process, and that the respondent may wish to make further submissions on that issue. The third submission was that the documents sought were not “truly administrative in nature and while that is not a point that we take in terms of affording an access it is perhaps a point that this Tribunal in exercising its jurisdiction may not safely ignore.” The senior member constituting the Tribunal expressed doubt that the Tribunal had power to accept the undertaking or to strike out the proceeding. The respondent’s officer put in summary the applicant’s position that she was entitled to the documents under the FOI Act and did not have to accept any undertaking of the respondent. He assured the Tribunal that there were no documents in dispute with regard to the granting of access and offered the Tribunal “a selection of the case management documents” for the Tribunal’s inspection if it wished. The senior member said that he would like to inspect the documents. As the argument proceeded, the senior member suggested that, if the decision under review was that the respondent was not required to accede to the request under s 5 of the FOI Act, but was now willing to make the documents available, the Tribunal should set aside the decision under review. The respondent’s officer replied that the respondent had always maintained that it would make documents available, but that because the documents were not of an administrative nature, the Tribunal might lack the power to make an order for access. The senior member invited the respondent’s officer to demonstrate why the documents were not administrative documents. The respondent’s officer then proceeded to make submissions to this effect, referring to authorities. After he had finished, the senior member adjourned the Tribunal for approximately 32 minutes. When he returned, he pronounced some reasons for decision and the Tribunal’s decision. The reasons were eventually reduced to writing and supplied to the applicant, along with the written decision.
The Tribunal’s reasons for decision
33 In the reasons for decision, the senior member first summarised the nature of the proceeding. He then continued:
2. The issue before the Tribunal is whether the documents to which access has been refused are administrative in nature.
3. Documents in relation to the case management of Ms Bienstein’s matters before the Family Court, including her appeals, are held in various matter (registry and appeal) files maintained by the respondent. In material submitted to the Tribunal the respondent stated that the matter files contain details of listings, and answers to specific questions. The documents have been made available by the respondent for inspection by Ms Bienstein.
4. The respondent stated that minutes of case management meetings are not routinely retained. The only minutes located were for the period 1997 and 1998, and these did not contain any reference to Ms Bienstein. Similarly, records of Pending Pre-hearing Conference and/or Trial Pools were held electronically, updated daily and printed at various times, but copies were not retained. Information held on file is maintained in a different format in daily law and similar lists, some of which may contain Ms Bienstein’s name. Outcomes of hearings are maintained on matter files.
5. The respondent stated that it does not keep electronic copies of document files in proceedings. It identified 644 pages of documents that may fall within Ms Bienstein’s request, and these are in electronic form. The respondent stated that Ms Bienstein, as a party to proceedings before the Court, has been informed that she has the right under the Family Court Rules to inspect and make copies of any of the documents. The respondent has also offered to grant Ms Bienstein access to relevant documents under s 14 of the FOI Act, which enables an agency to give access to documents (including exempt documents) otherwise than as required by the FOI Act.
34 The senior member then set out the terms of s 5 of the FOI Act, and a passage quoted from the judgment of the High Court in Fingleton v The Queen [2005] HCA 34 (2005) 227 CLR 166 at [52] per Gleeson CJ, to which I refer below. The senior member then referred to MacKeigan v Hickman [1989] 2 SCR 796, to which Gleeson CJ had referred in Fingleton, for its comments by the Supreme Court of Canada on the limits of the power to investigate the reasons for a decision to assign a judge to a case. The senior member then continued:
8. The Tribunal has considered the nature of the documents relevant to Ms Bienstein’s request, and finds that the documents refer to organisational matters such as Court lists and the assigning of judicial officers to particular cases. As noted in Fingleton, these are matters affecting litigants and the public, and are intimately related to the independent and impartial administration of justice. They are not documents of internal administration.
9. For these reasons under s 5 of the FOI Act the Tribunal finds that the relevant documents are not documents that relate to matters of an administrative nature, so the FOI Act does not apply to the request for access to the documents.
The grounds of the appeal
35 The questions of law specified in the applicant’s notice of appeal are in the following terms:
1) Whether a Respondent who claims to have grounds for challenging the
Tribunal’s jurisdiction is compelled either to issue the challenge and
have it determined at the outset or submit to the jurisdiction for the
duration of the proceeding;
2) What bearing, if any, do the following statutory provisions have on the
s 11 enforceable right of access provision of the Freedom of
Information Act:
a) Sections 5, 14 and 20 FOI Act, generally;
b) Order 5 Rule 6 Family Court Rules in the context of Tribunal
proceedings regarding an FOI request to the Family Court of
Australia for access to one’s own case management documents;
3) Whether it is Tribunal’s role in Part VI FOI Review proceedings to
determine which of the Applicant’s rights in respect of the request
remain to be satisfied and promptly direct the Respondent to satisfy
those rights in a timely manner;
4) Whether an Applicant in Part VI Review proceedings has an
immediate right to receive in the Respondent’s s 37 statement full and
honest disclosure of the Respondent’s relevant document holding, an
account of the steps the Respondent took in the search and
decision-making process, and documents to evidence the account
given;
5) Whether documents relating to the case management of matters before
the Family Court of Australia necessarily fall within the s 5 FOI Act
exclusion and whether the High Court decision in Fingleton v The
Queen [2005] HCA 34 (23 June 2005) supports such a conclusion;
36 It is clear that the notice of appeal was prepared without legal assistance. The questions of law are framed in an abstract way, rather than by reference to specific issues decided by the Tribunal or to specific reasons given by it for its decision. Grounds 2 and 5 clearly raise the effect of s 5 of the FOI Act, and therefore raise for consideration the correctness of the Tribunal’s decision that all of the possible documents sought in the applicant’s request did not relate to matters of an administrative nature. The other questions of law raised concern aspects of the way in which the Tribunal dealt with the applicant’s application for review of the respondent’s decision, prior to the Tribunal making its decision. These concerns of the applicant are reflected in the orders sought in her notice of appeal, which are expressed in the following terms:
1) Declare that documents related to the management of cases
proceeding in a court or tribunal are documents of the court or
tribunal relating matters of an administrative nature and, as such,
fall outside the s 5 FOI exclusion.
2) Declare that the Tribunal’s role during the course of proceedings and
when making a final decision is to promote and enforce the
Applicant’s rights in relation to the FOI request in question.
3) Declare that the Tribunal has an obligation to ensure that
Respondents comply fully and without undue delay with provisions of
s 37 of the Administrative Appeals Tribunal Act.
4) Directed the Respondent to file an appropriately amended s 37
statement, incorporating an amended decision with schedule of all
documents within scope of the request that had been located, an
account of the searches it had conducted and objective documentary
evidence in support of the account;
5) Set aside the Tribunal decision and remit the matter to be dealt with
according to law.
6) Make a costs order in favour of the Applicant.
37 The concern of the applicant with the manner in which her request for access to documents was dealt with by the respondent, both initially and while it was pending in the Tribunal, is reflected in the grounds advanced in the notice of appeal. These grounds cover approximately six pages. The applicant sets out in some detail the history, which I have set out above, including some substantial quotes from correspondence and other documents. Woven into this history are indications that the applicant takes issue with various statements made on behalf of the respondent and with the course taken by the Tribunal in relation to her application to review. She also clearly takes issue with the view of the respondent, and that of the Tribunal, in relation to the application of s 5 of the FOI Act.
38 Written submissions filed by the applicant in the Court were limited to what she described as “Part One”. From those written submissions, and from oral submissions advanced by the applicant at the hearing, as well as from the grounds in her notice of appeal, it is possible to summarise the concerns of the applicant that did not relate directly to the application of s 5 to her request. She contended that the respondent had abandoned its decision under s 5 by its statements of contentions filed in the Tribunal, and was therefore not prepared to support that decision and defend it in the Tribunal. As a consequence, she argued that the Tribunal should have compelled the respondent to make a new decision. She contended that the Tribunal exceeded its power by directing her to respond to the respondent’s request to accept the documents offered to her under s 14, insisting instead on her right to have a decision of the Tribunal in relation to her request. She complained of delay on the part of the Tribunal, contending that this was not in accordance with the objects of the FOI Act, particularly the reference to prompt disclosure of documents at the lowest reasonable cost. Perhaps inconsistently, she accused the Tribunal of denying her procedural fairness by setting her application down for hearing when she was not properly prepared, as well as by permitting the respondent to rely on its challenge to the jurisdiction of the Tribunal to deal with the application, when the respondent had informed her by means of a statement of contentions that it did not propose to take this objection.
The grounds other than s 5
39 The applicant was wrong to suggest that, simply because the respondent did not adhere to its original decision, the Tribunal should have ordered it to make a new decision. The Tribunal was required to review the decision of the respondent itself, and to make the correct or preferable decision in accordance with the law and on the facts as it found them after its hearing. See Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 per Bowen CJ and Deane J. The fact that the respondent appeared to have retreated somewhat from its original decision did not mean that the decision had disappeared. Nor did the Tribunal possess statutory power to compel the respondent to make another decision on this basis. Section 42D of the AAT Act confers on the Tribunal power to remit the decision to the person who made it for reconsideration. That power does not include power to compel the original decision-maker to make a decision different from that made in the first place. (Section 42D(2) provides that, if the decision is remitted, the original decision-maker may affirm or vary the decision, or set aside the decision and substitute a new decision.) There is no requirement that the Tribunal exercise the power to compel reconsideration, only a discretion to do so. No error of law can result from a failure to exercise the power.
40 In principle, there is nothing wrong with the Tribunal encouraging the parties to an application for review to resolve their differences. Section 42C of the AAT Act makes specific provision for the Tribunal to act in accordance with agreement reached between the parties or their representatives as to the terms of a decision of the Tribunal, if it is satisfied that a decision in those terms or consistent with those terms would be within the powers of the Tribunal. It may be that, in the circumstances, when the applicant had made clear a number of times her intention to press for a decision of the Tribunal, rather than to agree to limiting her access to documents to those available under the Family Court Rules or to those offered to her by the respondent, the Tribunal went too far and delayed too long in attempting to persuade her to settle. This could not be characterised as an error of law. At the most, it was a well-intentioned but perhaps misguided attempt to have the proceeding resolved otherwise than by a decision of the Tribunal.
41 To the extent to which there was delay in the Tribunal proceeding, the delay appears to have been partly due to the applicant’s illness, and to her consequent inability or unwillingness to move along her end of the proceeding. Whatever the objects of the FOI Act may say about promptness, it is not an error of law for the Tribunal not to hear and determine an application within any particular period after the filing of the application. Managing the large number of cases that come before the Tribunal is challenging enough without imposing on the Tribunal deadlines in particular types of cases. The object of promptness in s 3(2) of the FOI Act is exhortatory, not mandatory. Lack of promptness is not error of law.
42 The basis on which the applicant contended that the Tribunal proceeded to a decision precipitately, when she had not had an adequate opportunity to prepare, is somewhat puzzling. It may be that the contention is based on a failure by the Tribunal to take sufficient account of her illness. The fact is, however, that when the Tribunal did list the application for hearing, the applicant did not seek an adjournment on the ground that she was unable to participate. By not doing so, and by not attending the hearing, the applicant ran the risk of what would happen. An examination of the transcript of the hearing confirms that, as I have summarised the facts above, the advocate on behalf of the respondent did not insist on challenging the validity of the request as a whole, but left it to the Tribunal to consider whether it had jurisdiction. The Tribunal always had an obligation to consider whether it had jurisdiction to deal with the review, whether or not the respondent consented to this course. Accordingly, the applicant ran the risk that the Tribunal would hold that the request was not a request that fell within the FOI Act at all. It was not an error of law for the Tribunal to proceed to such a decision, although the question whether it was correct in law in reaching that decision depends upon the proper construction of s 5 of the FOI Act.
43 Apart from the question of the proper construction of s 5, the applicant has not made out any other ground of error of law on the part of the Tribunal.
The proper construction of s 5
44 Counsel for the respondent urged the adoption of a purposive construction of s 5 of the FOI Act, in accordance with s 15AA of the Acts Interpretation Act 1901 (Cth) (“the Acts Interpretation Act”). She invited the Court to go to extrinsic material, in accordance with s 15AB of the Acts Interpretation Act, in order to confirm the construction for which she contended as according with the purpose.
45 The provisions which became ss 5 and 6 of the FOI Act came into being by amendment to the original Bill for the FOI Act, when that Bill reached the Senate. The amendment was recommended by the Senate Standing Committee on Constitutional and Legal Affairs, which had considered the Bill. Clause 4 of the original Bill had provided as follows:
For the purposes of this Act—
(a) a court, or the holder of a judicial office or other office pertaining to a
court in his capacity as the holder of that office, is not to be taken to be
a prescribed authority or to be included in a Department;
(b) a registry or other office of a court, and the staff of such a registry or
other office in their capacity as members of that staff, shall not be
taken to be part of a Department;
(c) a tribunal, authority or body specified in this paragraph, or the holder
of an office pertaining to such a tribunal, authority or body in his
capacity as the holder of that office, is not to be taken to be a
prescribed authority or to be included in a Department, namely:
(i) the Australian Conciliation and Arbitration Commission;
(ii) the Industrial Registrar or a Deputy Industrial Registrar;
(iii) the Flight Crew Officers Industrial Tribunal;
(iv) the Public Service Arbitrator or a Deputy Public Service
Arbitrator; and
(v) the Coal Industry Tribunal or any other Tribunal, authority or
body appointed in accordance with Part V of the Coal Industry
Act 1946; and
(d) a registry or other office of, or under the charge of, a tribunal,
authority or body referred to in paragraph (c), and the staff of such a
registry or other office in their capacity as members of that staff, shall
not be taken to be part of a Department.
46 Clause 5 of the original 1981 Bill also made provision for the specification by regulation of bodies to which the FOI Act was not to apply. On 7 May 1981, Senator Evans moved the amendment that resulted in what is now s 5 and s 6. In so moving, Senator Evans said:
The object of the amendment is to treat this clause, which deals with courts, judicial offices, certain industrial tribunals and their registries, in such a way that those bodies are not exempt from the operation of the Act so far as their administrative procedures, properly so-called, are concerned...whilst there are obviously good reasons for excluding the operation of this kind of legislation where it might intrude on the independence of the judiciary and whilst it certainly should not operate as an alternative means for litigants to obtain discovery of court documents in the course of their litigation, there was a clearly definable area of court and tribunal activity which was legitimately the subject of public interest so far as efficient administration was concerned. The Bill ought to be amended to make this clear.
The kind of matters that the Committee had in mind as justifying the operation of the Bill were questions relating to the number of sitting days, the number of cases determined, the number of cases withdrawn, the number of cases which were subsequently appealed, criminal cases in which bail was awarded and so on. The utility, or indeed the necessity, for an exemption for administrative questions of this kind is in fact made more obvious by the recent change in the legislation governing the High Court of Australia. These sorts of administrative questions are now clearly within the Court’s jurisdiction, whereas previously the majority of administrative matters of this kind were performed by or through the Attorney-General’s Department and as such were the subject of ordinary access procedures so far as information was concerned.
If questions of administrative efficiency of this kind are now to be locked away within the bosom of the institution, as a result of legislative changes of the kind that have recently been made concerning the High Court, it becomes that much more important for there to be access procedures available to people to ensure that information of the kind to which I am referring can be extracted. That is the justification for the amendment. The Senate Committee does not see this as interfering or trespassing in any way with the independence of these bodies which, as a part of our constitutional system, it is important to preserve. It is a distinction which is familiar and understood and the language in which the amendment is cast is sufficiently clear and precise, in our view, to be accommodated directly by the Government. I hope that is exactly what happens. (Australia, Senate, Debates (1979) Vol S89, p 1768)
47 The amendment was supported by two Government senators, but was opposed by the then Attorney-General who said:
The object of this legislation is to provide access to information at the level of the Executive branch of government, not the Parliament or the judicial branches of government. Very sensitive relationships exist between the Executive and the judiciary, as I am sure all honourable senators will be well aware. For a start it is a very difficult exercise to indicate clearly what sort of documents will be comprehended in regard to administrative aspects as opposed to the other judicial aspects of a court. Obviously problems of very considerable detail could arise, but putting that aside, the policy of this legislation is directed to the Executive government. By seeking to extend it, even to a limited extent, into the administration side of the judicial branch of government, I believe is going beyond the object and intention of this legislation. As I have said, the reason we have not gone into that is because of this very sensitive relationship.
Judges see the staff provided to them, even though they may be provided as part of the Executive branch of government, as being very much under the authority of the judges and working for them...I think that if rights of this kind were created they would be regarded as an intrusion into judicial independence...
even though an attempt is made in the amendment to limit its scope to administrative matters, I think the same considerations should apply to those matters as apply to draft judgments or other matters which are clearly within the judicial area. Courts do not look at their independent role as being limited only to what the judge may do. The courts look upon themselves—and rightly so under our Constitution—as bodies separate from the Executive. A very clear distinction is made and we agree with that. I think by opening up that question, as the carrying of this amendment would do, we would be raising matters which are really quite beyond the intention and object of this legislation which, as I have said, is designed to provide access to documents in the executive arm of government, not the other arms of government. (Australia, Senate, Debates (1979) Vol S89, p 1769)
48 Senator Evans then spoke again. He referred to the deliberations of the Senate Standing Committee on Constitutional and Legal Affairs in relation to the Bill, and said:
We decided, as I indicated, that it was important to maintain, absolutely unsullied and unfettered, the principle of judicial independence so far as judicial powers, properly so-called, were concerned. But when it came to the administration of any of the courts in the Federal system and even more so when it came to the administration of things like the Conciliation and Arbitration Commission, Office of the Industrial Registrar, Deputy Industrial Registrars, the Flight Crew Officers Industrial Tribunal, Public Service arbitrators and so on—all of the other bodies which are also dealt with as part of this compendious amendment—the public had an overwhelming interest and indeed a right to know how they were being administered, how effectively, how cost effectively and to what extent services were being made available in the public interest. (Australia, Senate, Debates (1979) Vol S89, pp 1769-1770)
49 The debate continued. At its conclusion, the proposed amendment was carried.
50 The reference made by Senator Evans to the recent change in the legislation governing the High Court of Australia was clearly a reference to the High Court of Australia Act 1979 (Cth), and particularly to Pt III. Section 17(1) provided “The High Court shall administer its own affairs subject to, and in accordance with, this Act.” At the stage when the Senate was debating the proposed amendment to the Bill for the FOI Act, the courts created by Parliament under Ch III of the Constitution had not been granted self-administration powers, in the way that the High Court had. The provisions now found in Pt IVA of the Family Law Act 1975 (Cth) and Pt IIA of the Federal Court of Australia Act 1976 (Cth) were first inserted by the Courts and Tribunals Administration Amendment Act 1989 (Cth) (Act No. 157 of 1989). At the time of the Senate debate, the administration of the respondent (and of this Court) was still the responsibility of the Attorney-General’s Department. In discerning the purpose of the amendment, it is significant that there was a recognition that courts to which self-administration had not been granted would nonetheless have documents relating to administrative matters. If it were not so, the amendment would have been limited to the one court that had been granted self-administration, the High Court of Australia.
51 Counsel for the respondent argued that s 5 should be construed as excluding from the operation of the FOI Act all documents except those that were of general significance in relation to the operation of a court, as distinct from those relating to individual proceedings in the court. She contended that the phrase “matters of an administrative nature” was understood by the Senate by reference to the kinds of examples to which Senator Evans referred, and which the Committee recommending the amendment had chosen, by way of justification of the amendment. Counsel for the respondent said that documents relating to the number of sitting days, the number of cases determined, the number of cases withdrawn, the number of cases subsequently appealed and criminal cases in which bail was awarded were all examples of a general nature, and the purpose of the amendment ought therefore to be understood as relating only to such general subjects.
52 There are difficulties in adopting this construction. It must be remembered that the amendment was designed to change the proposed legislation from having no application at all to a court to having application to a court in respect of documents relating to matters of an administrative nature. The word “administrative” was by no means new. In 1981, the revolution in Australian administrative law, brought about by legislation in the mid 1970s, was recent enough to be in the memories of at least some of the Senators. The reference to “an administrative nature” was not sufficiently different from the phrase “an administrative character”, which appears in the definition of “decision to which this Act applies” in s 3(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) to convey to Senators that a different, more restricted, meaning of the word “administrative” was proposed. Indeed, in moving the amendment, Senator Evans referred to the familiarity of the distinction between matters essential to judicial independence and administrative matters as a distinction “familiar and understood”, and asserted that the language of the amendment was “sufficiently clear and precise”. In other words, the ordinary meaning of the word “administrative”, in a legal context, had been chosen.
53 In addition, there are practical difficulties in attempting to limit the meaning of s 5 by reference to the examples put forward to justify the amendment. The FOI Act is about access to documents in the possession of an agency. It does not require the creation of documents that might fit the request. Thus, a request for documents that would provide information about the number of sitting days of a court, the number of cases determined, the number of cases withdrawn, the number of cases appealed or about criminal cases in which bail was awarded, may well require the granting of access to documents relating to individual cases, if the statistics sought by the person making the request had not been compiled by the court concerned. In other words, even in the examples advanced to justify the amendment, there is inherent the proposition that documents relating to individual cases might be characterised as documents relating to “matters of an administrative nature.” For these reasons, it is necessary to approach the question of the proper construction of s 5 of the FOI Act without presupposing that Parliament intended the provision to apply only to access to documents of a general nature. As the extrinsic materials themselves show, Parliament intended to use the word “administrative” according to its ordinary meaning in a legal context.
54 It is also significant that the amendment that produced s 5 also produced s 6 of the FOI Act. Section 6 also provides that the FOI Act does not apply to a request for access to a document of a tribunal, authority or body specified in Sch 1 “unless the document relates to matters of an administrative nature.” The wording is identical to that used in s 5, but s 6 relates to institutions that are not judicial, in the sense that they are not created under Ch III of the Constitution and are therefore emanations of the Executive arm of government, required to be entirely separate from the judicial arm. Having said this, the independence of those institutions from interference by the Executive arm of government is also important. The then Attorney-General recognised this in the course of the Senate debate. Having regard to the nature of both courts and the institutions to which s 6 applies, and to the importance of judicial independence, and the independence of the other institutions, recognised on both sides of the Senate debate about the amendment, it can be taken that both s 5 and s 6 are intended not to extend as far as requiring the giving of access to documents that would put that independence at risk. With this fundamental principle in mind, it is necessary to see whether assistance can be derived from the authorities on s 5 as to the meaning of “unless the document relates to matters of an administrative nature.”
55 As I have said in [34], the Tribunal relied on a passage quoted from the judgment of Gleeson CJ in Fingleton v The Queen [2005] HCA 34 (2005) 227 CLR 166 at [52], where his Honour said:
The answer to that question, and to the respondent’s argument, requires closer examination of s 10 of the Magistrates Act. In truth it covers a number of matters closely related to issues of judicial independence. Sub-sections (1) and (2) of s 10 cover the whole range of matters relevant to the orderly and expeditious exercise of the jurisdiction and powers of the Magistrates Courts, and include the organising of court lists, the allocation of magistrates to particular localities, and the assigning of magistrates to particular work. Arrangements of that kind are not merely matters of internal administration. They affect litigants and the public. Within any court, the assignment of a judicial officer to a particular case, or a particular kind of business, or a particular locality, is a matter intimately related to the independent and impartial administration of justice. This was the basis of the decision of the New South Wales Court of Appeal in Rajski v Wood, where it was held that the nomination or allocation of a judge to hear a particular case was not justiciable. As was pointed out in Minister for Immigration and Multicultural Affairs v Wang, where it is the function of a head of jurisdiction to assign members of a court to hear particular cases, the capacity to exercise that function, free from interference by, and scrutiny of, the other branches of government is an essential aspect of judicial independence. The same may be said of the capacity to exercise that function free from the threat of civil or criminal sanctions.
56 When viewed in the context of the judgment of Gleeson CJ, this passage may not lead to the conclusion that the Tribunal drew from it.
57 In Fingleton, the Chief Magistrate of Queensland had been convicted of the offence of unlawful retaliation against a witness under s 119B of the Criminal Code (Qld) (“the Criminal Code”). The facts were that the Chief Magistrate had determined that a magistrate should be transferred to Townsville. The magistrate filed an application for review of that determination. The magistrate wrote to the Magistrates Association, seeking assistance with her application. A Co-ordinating Magistrate, who was also Vice-President of the Magistrates Association, provided an affidavit to assist the magistrate in the review proceeding. The Chief Magistrate then sent to the Co-ordinating Magistrate a letter calling on him to show cause why he should not be removed from the position of Co-ordinating Magistrate. The letter referred specifically to the affidavit in support of the magistrate’s review application.
58 On appeal to the High Court, there was raised for the first time s 30 of the Criminal Code, which provided:
Except as expressly provided by this Code, a judicial officer is not criminally responsible for anything done or omitted to be done by the judicial officer in the exercise of the officer’s judicial functions, although the act done is in excess of the officer’s judicial authority, or although the officer is bound to do the act omitted to be done.
59 The power the exercise of which by the Chief Magistrate gave rise to the charge was found in s 10 of the Magistrates Act 1991 (Qld) (“the Magistrates Act”). Particularly relevant was the express power in s 10(2)(d), of nominating a magistrate to be a Supervising Magistrate or a Co-ordinating Magistrate for the purpose of the allocation of work of the Magistrates Court. In conjunction with s 25(1) of the Acts Interpretation Act 1954 (Qld), the power to appoint included a power to remove. It was also necessary to consider s 21A of the Magistrates Act, which provided:
A magistrate has, in the performance or exercise of an administrative function or power conferred on the magistrate under an Act, the same protection and immunity as a magistrate has in a judicial proceeding in a Magistrates Court.
60 One of the issues determined by the High Court in Fingleton was whether, in combination, s 21A of the Magistrates Act and s 30 of the Criminal Code gave immunity to the Chief Magistrate in exercising the power given to her by s 10(2)(d) of the Magistrates Act. In his reasons for judgment, Gleeson CJ dealt at length with this issue. At [47]-[48], his Honour summarised the competing contentions on the issue:
The argument for the appellant in this Court was that s 10 of the Magistrates Act conferred on the appellant as Chief Magistrate a series of administrative functions and powers, that she acted in the performance or exercise of those powers, that she had the same protection and immunity as she had in the exercise of her judicial functions, and that, except as expressly provided by the Code, she was not criminally responsible for anything done by her in the exercise of her administrative functions, even if the act done was in excess of her administrative authority.
The argument for the respondent turned upon a question of construction of s 21A and, in particular, the words “administrative function or power conferred on [a] magistrate under an Act”. The respondent submitted that those words did not cover s 10 of the Magistrates Act itself. The argument called in aid two considerations: one textual; the other related to the rationale of immunity.
61 His Honour then proceeded to deal with what he described as the textual consideration. This involved the question whether the phrase “under an Act” in s 21A of the Magistrates Act referred only to functions or powers conferred on magistrates by legislation other than the Magistrates Act, or whether it included such powers and functions conferred by the Magistrates Act itself. By contrast, the consideration related to the rationale of immunity involved a comparison of the sorts of functions and powers conferred by s 10 of the Magistrates Act with the sorts of functions and powers conferred by various other statutes, as to which there was a need for the protection of magistrates from interference with their independence in the decision-making process. The question that Gleeson CJ answered in the passage from his judgment, which I have quoted in [55] above, is posed in [51] of his Honour’s judgment:
Such independence is important in relation to the exercise by magistrates of the various responsibilities conferred on them by other Acts of the kind set out above. What, the respondent asks, does it have to do with matters of internal court administration and discipline of the kind dealt with by the Magistrates Act itself?
62 It is to be noted that, in the passage quoted in [55] above from his Honour’s judgment, Gleeson CJ described s 10 of the Magistrates Act as covering a number of matters “closely related to issues of judicial independence.” In other words, they were not themselves issues of judicial independence, but closely related. His Honour referred to the organising of court lists, the allocation of magistrates to particular localities and the assigning of magistrates to particular work. In saying that arrangements of that kind “are not merely matters of internal administration”, but that they “affect litigants and the public”, his Honour was not saying that those matters fell within the exercise of judicial power. Rather, Gleeson CJ was underlining the public importance of these aspects of court administration, because of their close relationship to issues of judicial independence. Following the passage quoted in [55] above, in [52] of his Honour’s reasons for judgment, Gleeson CJ said:
The responsibilities conferred upon a Chief Magistrate by s 10 would cover some mundane issues of a kind that arise in the administration of any substantial organisation. On the other hand, some of those responsibilities, and especially those involving decisions which directly or indirectly determine how the business of Magistrates Courts will be arranged and allocated, concern matters which go to the essence of judicial independence. The selection of supervising and Co-ordinating Magistrates is a matter that falls into that category. It is, therefore, incorrect to say that the functions and powers conferred on the Chief Magistrate by s 10 are unrelated to the rationale for the immunity in question. As to some of those functions the rationale is directly relevant. As to some it may be of no relevance, or of limited relevance. As to others, its relevance may depend upon the circumstances.
63 In [53] of his Honour’s reasons, Gleeson CJ referred to judgments of the Supreme Court of Canada and the Constitutional Court of South Africa, and cited the reference to “matters of administration bearing directly on the exercise of [the] judicial function” from Valente v The Queen [1985] 2 SCR 673 at 708. His Honour then said:
The adjudicative function of a court, considered as an institution, was seen as comprehending matters such as the assignment of judges, sittings of the court and court lists, as well as related matters of allocation of court-rooms and direction of the administrative staff engaged in carrying out that function. Judicial control over such matters was seen as an essential or minimum requirement for institutional independence. The distinction between adjudicative and administrative functions drawn in the context of discussions of judicial independence is not clear cut. Nevertheless, the powers conferred by s 10 of the Magistrates Act include powers that fall squarely within the rationale of the immunity in question.
64 Gleeson CJ therefore held that the words “under an Act” in s 21A of the Magistrates Act applied to the functions and powers given to the Chief Magistrate by s 10. Accordingly, s 30 of the Criminal Code was applicable to them and the appeal should be allowed.
65 In Fingleton at [59], McHugh J expressed his agreement with the reasons of Gummow and Heydon JJ with respect to the issue relevant to this case. At [121]-[123], Gummow and Heydon JJ said:
The appeal in this Court thus turns upon the construction of s 21A of the Magistrates Act. The submissions for the respondent fix upon the phrase therein “conferred on the magistrate under an Act”. The respondent seeks to introduce a limitation upon those words so that the phrase is to be understood as if it read “under any Act other than this Act”.
Section 10 of the Magistrates Act conferred upon the appellant a range of administrative functions or powers. They included the nomination of Co-ordinating Magistrates, the allocation of magistrates to particular localities and the power of reprimand. Indeed, it was a demand made by the appellant upon a Co-ordinating Magistrate to show cause why he should not be removed from that post which gave rise to the charge against her under s 119B of the Code. Attainment of the evident purpose of s 21A will be limited if it were to be given the qualified reading for which the respondent contends.
For these reasons, which concern the construction of s 21A, and those on this issue developed by the Chief Justice in his judgment, the appellant was not liable to be held criminally responsible for the conduct alleged against her.
66 For reasons that he set out at [162]-[169], Kirby J came to the same conclusion on the question of judicial immunity. At [193], Hayne J expressed his agreement with the reasons of Gummow and Heydon JJ. Each of the members of the High Court other than Kirby J therefore expressed their agreement, directly or indirectly, with the reasons given by Gleeson CJ.
67 What emerges from Fingleton, and particularly from the passage quoted by the Tribunal, of relevance to this case is the proposition that there will be powers and functions exercised and performed within a court, even by the judicial officers of that court, that are of an administrative nature. Some of those powers and functions will be such that, of their very nature, they are so close to the overriding consideration of judicial independence as to be an essential part of the adjudicative function. It follows that the exercise of those functions, although it might be termed “administrative”, ought to be protected from scrutiny by other arms of government, or by members of the public. Not all of the powers and functions properly characterised as being of an administrative nature will be so closely related to judicial independence that they need this kind of protection. In some cases, it will be necessary to look at the particular exercise of a power, or the particular act or acts in performance of a function, in their context, to determine whether public or executive scrutiny of them would endanger the necessary independence. This accords with the sort of distinction expressed by Senator Evans when he moved the amendment that became ss 5 and 6 of the FOI Act, between documents relating to matters of an administrative nature, and documents the exposure of which to the public view would threaten the independence which is a necessary element of the exercise of adjudicative functions by courts and tribunals. It is this distinction that is of the highest relevance in determining the purpose, and therefore the proper construction, of s 5 (and, incidentally, of s 6) of the FOI Act.
68 Reference was made by counsel for the respondent to a number of other authorities, either on s 5 of the FOI Act or on similar legislation. It is necessary to look at those authorities, to see whether they provide any useful guidance to the construction of s 5, as relevant to this proceeding.
69 In Loughnan (Principal Registrar, Family Court of Australia) v Altman (1992) 39 FCR 90, the Full Court dealt with an appeal from a decision of the Tribunal, constituted by its then President, O’Connor J, in Re Altman and Family Court of Australia (1992) 27 ALD 369. Her Honour had reached the conclusion that an unrevised transcript of reasons for judgment pronounced in open court by a judge of the respondent was a document that the respondent was required to give access to under s 5 of the FOI Act. Because the unrevised transcript was produced by the agency responsible for providing transcript of court proceedings, the case turns largely on the meaning of the expression “a document of the court” in s 5, and is therefore of little relevance to the present case. In the course of the Full Court’s judgment, at 95, the Court did approve the conclusion of O’Connor J that the unrevised transcript was not a document of an administrative nature. Clearly, the giving of reasons for judgment and the practice of revising the transcript of those reasons for publication as the reasons for judgment are at the very heart of the judicial process, and the ready availability of the unrevised transcript to the public could undermine the independence of the judiciary.
70 Loughnan has since been discussed in a couple of decisions of the Tribunal. In Re O’Sullivan and Family Court of Australia (1997) 47 ALD 765, Senior Member Dwyer dealt with a case in which access was sought to the handwritten notes of a Family Court counsellor. In her reasons, the learned senior member discussed Loughnan in the context of determining whether the counsellor’s notes were documents of the court. Having concluded that they were, at [25] the senior member found that the notes were not a document relating to matters of an administrative nature, because of the professional duties of the counsellor. It is unnecessary to decide in the present case whether that conclusion was correct. In Re Simring and High Court of Australia [2006] AATA 849 (2006) 44 AAR 103, Deputy President Walker dealt with a request for access to a document created in the course of dealing with an application for special leave to appeal to the High Court. The learned deputy president took the view that, because the document had been brought into existence within the chambers of a judge, as part of the judicial deliberative process, it was a judicial document, and not a document relating to matters of an administrative nature. The deputy president regarded Loughnan as not in point. At [19], the deputy president referred to the words “relates to matters of an administrative nature” in s 5 of the FOI Act in the following terms:
The language used is relatively flexible and focuses on the general nature of the document rather than on the presence in the document of any administrative features whatever, however insignificant they might be in relation to the document’s general nature. Even if the document in issue dealt incidentally with some administrative matters, and there is no evidence that it does, that would not necessarily detract from its overall quality as a document pertaining to the judicial role of the Court rather than to its administrative organisation.
71 This view is open to question. There can be little doubt that, if a document deals with matters of an administrative nature, and deals with other matters as well, it does not lose its character as a document relating to matters of an administrative nature simply because it deals with other matters. If the other matters dealt with by the document were matters of the exercise of judicial power, or were matters the availability of which would threaten judicial independence, consideration would have to be given to whether s 22 of the FOI Act permitted the document to be made available subject to the deletion of those parts of it relating to the matters that were not of an administrative nature, on the basis that the deleted parts of the document contained material irrelevant to the request.
72 There is a line of authority, to which Deputy President Walker referred, concerning whether a determination that a court should accept documents for filing, or reject them as an abuse of the court’s processes, falls within the phrase “decision of an administrative character” in the ADJR Act. In Legal Aid Commission of Western Australia v Edwards (1982) 42 ALR 154, Toohey J held that a decision of a deputy registrar of the Family Court of Western Australia to reject an application for taxation of a bill of costs, on the ground that the court did not have jurisdiction to deal with a dispute between the Legal Aid Commission and the solicitors for a legally aided party, was a decision of an administrative character. At 158-159, his Honour pointed out that the decision was not made under the direction of the court, apparently meaning under the direction of a judge. By contrast, in Letts v Commonwealth (1985) 8 FCR 585 at 586-587, Toohey J held that a registrar of the High Court, who sought the direction of a justice with respect to an attempt to file initiating process, had not made a decision of an administrative character. At 587, his Honour said:
The Registrar was in truth exercising the jurisdiction of the High Court to control frivolous or vexatious applications, a jurisdiction that may be exercised through officers of the court as well as justices.
His Honour distinguished Edwards on the basis that the decision the subject of Edwards “was not readily susceptible of review by a judge of that Court.”
73 In Bizuneh v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 42 (2003) 128 FCR 353, a Full Court rejected an application for leave to appeal from a direction of a judge to a registrar under O 46 r 7A of the Federal Court Rules (“the Federal Court Rules”) not to accept an application and accompanying affidavit for filing. At [16]-[17], the Full Court said:
No judicial act is carried out by the Registrar in so acting. The Registrar continues to perform an administrative function, albeit that the act of the Registrar may bear upon the ultimate performance of judicial power. Insofar as r 7A gives the Registrar a discretion to seek a direction from a judge as to performance of the Registrar’s duties, the direction sought is administrative in character. It is a direction provided by a judge to assist the Registrar in the task of administration and is not a determination of right made by a judge after hearing or considering arguments or submissions upon an application to the Court seeking the exercise of judicial power.
Rule 7A provides for a judge to act in aid of administration of the Court. There is no application to the Court by motion or otherwise and no requirement for a party to be heard. It involves determination of administrative obligations with respect to documents presented to a Registrar having regard to the character of the documents on their face. No order or decree intended to bind a party and no determination of right is made by a judge where assistance is provided to a Registrar under r 7A.
74 It appears to follow from the Full Court’s judgment that both the decision of the registrar to seek a direction of a judge, and the decision of the judge to direct the registrar, are decisions of an administrative character. Unfortunately, the Full Court does not seem to have had the benefit of citation of the apparently contrary view of Toohey J in Letts. In Paramasivam v Randwick City Council [2005] FCA 369, Sackville J took the view that he was bound by Bizuneh to decide that both the registrar seeking a direction of a judge, and the judge giving the direction, pursuant to O 46 r 7A of the Federal Court Rules, made decisions of an administrative character. At [31]-[39], his Honour referred to Edwards, Letts and Bizuneh. At [40]-[41], his Honour drew attention to the fact that the Full Court had not referred to Letts, and expressed doubts about the correctness of the reasoning in Bizuneh, whilst acknowledging that it was binding on him. His Honour made orders adding as respondents to the proceeding before him the deputy registrar who had made the decision to seek the direction of a judge and the judge who gave the direction to refuse to accept the documents. Subsequently, in Paramasivam v Randwick City Council (No. 2) [2005] FCA 508, effectively by consent, Sackville J set aside both the decision to seek a direction, and the direction, on the ground referred to in s 5(1)(d) of the ADJR Act, apparently on the basis that his Honour had foreshadowed in the first judgment at [43]-[51]. This was that both the registrar and the judge had taken into account other documents previously filed by the same applicant, whereas O 46 r 7A requires that the originating process “appears...on its face to be an abuse of the process of the Court or to be frivolous or vexatious.”
75 In my view, this line of authority provides little guidance in the construction of s 5 of the FOI Act. Manifestly, the determination to accept or reject documents for filing is a process in which the independence of the judge concerned, as well as of the registrar, is of vital importance. Accordingly, on the construction of s 5 that I have proposed, documents relating to such a process of determination would not be regarded as relating to matters of an administrative nature, for the purposes of s 5 of the FOI Act.
76 Counsel for the respondent also referred to two decisions of the Western Australian Information Commissioner, exercising powers under the Freedom of Information Act 1992 (WA), in Re Bartucciotto and Guardianship and Administration Board [2004] WAICmr 16 and Re Michael Bartucciotto and State Administrative Tribunal [2006] WAICmr 9. The legislation dealt within those cases also contained the words “relates to matters of an administrative nature”, referring to documents of courts. At [41] of the first decision, the commissioner referred to a dictionary definition of the word “administrative”, as meaning “concerning or relating to the management of affairs” and held that the relevant words were confined to documents relating to the management of the affairs of a court or tribunal. In the second decision at [100], the commissioner expanded on this view in the following terms:
In my view, there is only a right of access under the FOI Act to documents relating to the management of the affairs and routine administrative activities of a court or tribunal, and not to documents relating to its judicial or adjudicative functions. The key distinction, in my opinion, is that documents that are created in the course of and for the purpose of particular matters dealt with by the agency in the exercise of its adjudicative functions under the various pieces of legislation which confer jurisdiction upon it are not documents “relating to matters of an administrative nature”.
77 Clearly, the view expressed by the commissioner would constrain unduly the operation of the phrase “relates to matters of an administrative nature.” It should not be followed in relation to s 5 of the FOI Act.
78 The extrinsic documents to which I have referred in [46]-[48] above demonstrate clearly that s 5 of the FOI Act should be interpreted so that access to documents relating to the exercise of the judicial functions of courts, and to the decision-making functions of tribunals, are not excluded from the right of access merely for that reason. What emerges from the context of s 5, as well as from the extrinsic materials, is a concern that documents the revelation of which would impinge upon the independence essential to the exercise of the judicial function, or the decision-making process, should not be made available. It follows that, while the words “relates to matters of an administrative nature” in s 5 (and also in s 6) should be interpreted as including documents that bear upon the exercise of the judicial, or decision-making, functions, only those documents the availability of which would not impinge upon the necessary independence should be regarded as documents relating to matters of an administrative nature. The test will not necessarily be easy to apply. Its application will depend upon the terms of the request for a document, and may require an examination of the circumstances in which the document was produced and is retained. In the application of the test, however, it is necessary not to take too strict a view of what is necessary to be kept confidential in the interests of preserving the independence of the judicial and administrative decision-making functions.
The approach of the Tribunal
79 It is clear that, in [8] and [9] of its reasons for decision, the Tribunal misconstrued s 5 of the FOI Act, by applying a wrong test in determining whether the documents the subject of the applicant’s request were documents relating to matters of an administrative nature. If it were the case that the request, as narrowed by the applicant, was capable of covering documents that indicated how a particular judge was chosen to hear a particular proceeding or application, the applicant would not have been entitled to access to those documents. Those documents would not be documents relating to matters of an administrative nature, because they would bear upon the exercise of judicial functions, and the availability of access to them would threaten the independence of the judiciary. If it related to documents of that kind at all, however, the request manifestly was not confined to them. The senior member himself described the documents as referring “to organisational matters such as Court lists and the assigning of judicial officers to particular cases.” It is inconceivable that court lists could threaten the independence of the judiciary. They are clearly documents that relate to matters of an administrative nature. It must also be remembered that, despite the respondent’s apparent obstinacy in adhering to the proposition that its original decision was correct, it had been prepared to make available to the applicant a large number of documents. It is unlikely that the respondent would have been prepared to make available those documents on any basis if to do so would have involved interference with the independence of the judiciary or the exercise of the judicial function.
80 The distinction apparently drawn by the Tribunal was between matters that were “intimately related to the independent and impartial administration of justice” and “documents of internal administration.” This is a false distinction. In one sense, all documents kept by a court relate to the exercise of the judicial function. The exercise of that function is the purpose for which courts exist. Despite that, in enacting s 5 of the FOI Act, Parliament intended that some of the documents held by courts would be the subject of access by those applying under the FOI Act. In providing for the making available of any document that “relates to matters of an administrative nature”, Parliament was intending to draw a distinction, within the overall category of documents relating to the exercise of the judicial function, between those that were part of the exercise of that function, or so closely related to it that their confidentiality is essential to the exercise of the judicial function, and other documents held by a court. The applicant’s requests, as modified by her, clearly comprehended a number of documents, including documents identified by the respondent, to which the applicant was entitled to access within the terms of s 5 of the FOI Act.
81 The Tribunal’s task, therefore, was to ascertain what documents existed in the respondent’s records that answered the description of documents in the request, as modified. Once it had done so, the Tribunal had to separate those documents that related to matters of an administrative nature from those that did not. In the circumstances, this required the Tribunal to determine into which of these two categories each of the documents produced by the respondent fell. This required the Tribunal either to examine every document produced by the respondent, or to satisfy itself by other means that every document belonged to a category on one side of the dividing line or the other. It would be possible to say, for instance, by looking at a court list, that the applicant was entitled to see all court lists that fell within the terms of her modified request. By looking only at a sample of documents, chosen by the respondent, the Tribunal appears to have abdicated this task.
82 In not applying the correct test for the application of the distinction drawn by s 5 of the FOI Act, the Tribunal made an error of law. On the findings of the Tribunal, it was not open to it as a matter of law to reach the conclusion that the applicant’s request, in its entirety, fell outside s 5 of the FOI Act.
Conclusion
83 For these reasons, the appeal must be allowed. The Tribunal’s decision must be set aside, and the matter must be remitted to the Tribunal to be heard and decided again. In case
the applicant has incurred out-of-pocket expenses in the preparation and conduct of the appeal, an order should be made that the respondent pay her costs of the proceeding.
| I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. |
Associate:
Dated: 5 August 2008
| Counsel for the Applicant: | The applicant appeared in person |
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| Counsel for the Respondent: | J Lye |
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| Solicitor for the Respondent: | Australian Government Solicitor |
| Date of Hearing: | 11, 26 February 2008 |
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| Date of Judgment: | 5 August 2008 |
