Case Summary and Outcome

The High Court of Australia held that section 6A(1) of the Freedom of Information Act 1982 (FOIA) excludes from disclosure documents held by the Official Secretary to the Governor-General unless they relate to “matters of an administrative nature,” which does not include documents relating to substantive powers. The Applicant requested documents relating to the Australian system of honors. The Court reasoned that documents which relate to “matters of an administrative nature” are those that concern the management and administration of office resources and support the exercise of the Governor-General’s substantive powers. In contrast, the documents requested about the conferral of honors related to substantive functions of the Governor-General.

This case analysis was contributed by Right2Info.org.

Facts

The Applicant, Ms. Kline, made a request for access to documents held by the Official Secretary to the Governor-General of the Commonwealth of Australia. The documents related to the Order of Australia and included two nomination forms for making an award, correspondence in relation to those nominations, criteria for making awards, working manuals, policy guidelines, and documents relating to review processes. The Official Secretary determined that the documents were not of an administrative nature and denied access.

The decision was upheld by the Australian Information Commissioner, the Tribunal and the Federal Court following which the Applicant was granted special leave to apply to the High Court.

Decision Overview

The Court denied access to the documents, affirming the decision of the lower court. The Court noted that the Governor-General – like the federal Parliament, and federal judges – was not subject to the operation of the FOIA, because neither he nor his office falls within the definition of an “agency” or “prescribed authority.” Making clear this general point, section 6A(1) reads: “This Act does not apply to any request for access to a document of the Official Secretary to the Governor-General unless the document relates to matters of an administrative nature.” The Court explained that documents which relate to “matters of an administrative nature” are those that “concern the management and administration of office resources,” namely, those that relate to “the office ‘apparatus’ which support[s] the exercise of the Governor-General’s substantive powers and functions.” In contrast, the documents requested related to the office’s substantive powers.