HO v Attorney-General's Department

[2008] NSWADT 224

CITATION:	HO v NSW Attorney General’s Department [2008] NSWADT 224
DIVISION:	General Division
PARTIES:	APPLICANT HO RESPONDENT New South Wales Attorney General’s Department
FILE NUMBER:	083168
HEARING DATES:	23 June 2008
SUBMISSIONS CLOSED:	31 July 2008
DATE OF DECISION:	14 August 2008
BEFORE:	Handley R - Deputy President
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Freedom of Information Act 1989 FOI Regulation 2005 District Court Act 1973 Evidence Act 1995
CASES CITED:	R v Prasad (1979) 23 SASR 161 N (No 3) v Commissioner of Police, NSW Police Service [2002] NSWADT 34 Commissioner of Police NSW Police Service v N (2003) NSWSC 943 Budd v Director, Attorney General’s Department [2006] NSWSC 1267 N v Director General, Attorney General’s Department (GD) [2002] NSWADTAP 41 NZ v Director General, Attorney General’s Department (GD) [2005] NSWADTAP 62 Re Altman and the Family Court of Australia (1992) 27 ALD 369 N (No. 2) -v- Director General, Attorney General's Department [2002] NSWADT 33 Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 Re Dingjan and ors ex parte Wagner and anor (1995) 183 CLR 323
REPRESENTATION:	APPLICANT In person RESPONDENT D Hartman, solicitor
ORDERS:	Pursuant to s 10 of the Freedom of Information Act 1989, the Tribunal has no jurisdiction to review the decision refusing to amend a document containing information concerning HO’s personal affairs.

1 This matter involves an application by HO for the review of a decision of the NSW Attorney General’s Department (‘the Department’) made pursuant to the Freedom of Information Act 1989 (‘the FOI Act’) to refuse to amend a document containing information concerning his personal affairs.

Background

2 HO was charged with two indictable offences to which he pleaded ‘not guilty’ and in respect of which he was tried in the District Court of NSW before Judge Saunders between 21 and 24 August 1995. On 24 August 1995, at the conclusion of the prosecution case and at the invitation of counsel for the defence, His Honour directed the jury to consider whether to acquit the accused without hearing the defence case (transcript 24 August 1995, page 141ff). Such a direction is referred to as a ‘Prasad Direction’ (pursuant to the decision in R v Prasad (1979) 23 SASR 161). After a short adjournment, the jury responded that they had “heard enough evidence” and found HO not guilty of both offences (transcript 24 August 1995, page 144).

3 Following the jury’s verdict, Judge Saunders noted on a Court result sheet that he had given a ‘Prasad Direction’, that “accused found ‘NG’ of each count”, and “jury discharged”. A Court notation for 24 August 1995 reads as follows:

“At the conclusion of Crown’s case, His Honour gives a ‘Prasad Direction’ to jury. Jury do not wish to hear further at end of Crown’s case. Accused found ‘Not Guilty’ of 2 counts. Jury discharged.”

4 By letter dated 27 February 1996, HO requested a Certificate of Acquittal in relation to the trial. On 12 March 1996, the Assistant Registrar of the District Court of NSW issued a ‘Certificate of Trial and Acquittal’ (‘the Certificate’), including the following certification in the third paragraph of the document:

“that the said ...[HO] having pleaded not guilty to both counts on the Indictment, was tried on the said Indictment before a jury, and on twenty-fourth day of August in the year one thousand nine hundred and ninety-five, His Honour directed that the said ... [HO] be found not guilty of both counts on the indictment.”

5 By letter dated 23 February 2008, HO applied to the Registrar of the District Court for an amendment to the third paragraph of the Certificate pursuant to s 39 of the FOI Act. HO also requested that the spelling of his surname be corrected throughout the document.

6 On 17 March 2008, having received no response to this letter, HO wrote to the Director General of the Department, enclosing a copy of his original application. HO stated that having received no reply to his application, he was treating the lack of a response as a deemed refusal, pursuant to s 24(2), and now sought an internal review of the deemed refusal in accordance with s 47.

7 In a reply dated 14 April 2008, a delegate of the Director General stated that the District Court had not received HO’s application. However, the delegate said notwithstanding that HO’s request should have been made direct to the Registrar of the District Court and not pursuant to the provisions of the FOI Act, the Registrar had, nevertheless, considered HO’s request and decided that he was unable to concede to it. The delegate stated that should HO seek to have this decision reviewed, he would need to “apply to the Court by way of Notice of Motion served upon the Director of Public Prosecutions and filed in the Registry”.

8 By letter addressed to the delegate dated 17 April 2008, HO sought clarification of the legal basis of the Registrar’s decision. He also stated that pursuant to s 43 of the FOI Act, he was entitled to treat the delegate’s letter as a refusal to amend the document, thereby entitling him to seek an external review of this decision by the Tribunal. However, he asked that the delegate reconsider her views and provide him with “a proper internal review as required under ‘The Act’”.

9 By letter dated 28 April 2008, the delegate responded:

“The Registrar of the District Court confirms his view that your application is not appropriate under the Freedom of Information Act 1989 (FOI Act) as section 10 of that Act states that ‘an agency’ does not include the court or a person who is the holder of an office in relation to a court. The reference made by you to sections 39 and 40 of the Act refers to applications being made to an ‘agency’, from which definition the court (or registry) is excluded.

While applications to agencies are provided for in sections 39 ad 40, section 10 overrides those sections as courts and registries are not agencies for the purposes of the Act. On this interpretation, the Registrar’s lack of authority to amend your name on the indictment is moot, as courts and registries are not considered to be agencies.”

10 HO responded by letter dated 30 April 2008 stating that the s 10 exemption applies in respect of a court’s ‘judicial functions’, as defined in s 6 of the FOI Act. He contended that documents such as the Certificate pertain to a court’s ‘administrative functions’ and, therefore, fall within the ambit of the FOI Act. In support of this contention, HO referred to a decision of the President of the Tribunal, O’Connor DCJ, in N (No 3) v Commissioner of Police, NSW Police Service (2002) NSWADT 34, at paragraph 35, where the President discussed the meaning of the term ‘administrative functions’ in s 39 of the FOI Act. This decision was upheld on appeal in Commissioner of Police NSW Police Service v N [2003] NSWSC 943, where Cripps JA endorsed the President’s interpretation of that phrase.

11 The delegate replied by letter dated 26 May 2008 confirming her previous response. On 29 May 2008, HO filed an application with the Tribunal for a review of the Department’s decision. At HO’s request and without objection by the Department, the Tribunal ordered the anonymisation of HO’s name pursuant to s 75(2) of the Administrative Decisions Tribunal Act 1997.

12 At a Directions Hearing with the parties on 23 June 2008, after some discussion of the jurisdictional issues raised by this matter, I made orders for the exchange of written submissions on the issue of the application of s 10(1) of the FOI Act. These orders were slightly amended at a further Directions Hearing on 29 July 2008.

13 If s 10(1) applies, the Tribunal has no jurisdiction to review the decision refusing to amend the document containing personal information concerning HO’s personal affairs (the Certificate issued on 12 March 1996). I note that one of the issues raised by the Department is whether there has been an internal review decision. I proposed that I should deal with this as a secondary jurisdictional issue, with further input from the parties, should I determine that HO’s application for amendment of documents is not be barred by s 10(1).

14 The parties agreed that having considered their written submissions on the application of s 10(1), I would make a decision on this preliminary issue ‘on the papers’.

The Relevant Legislation

15 Section 39 of the FOI Act permits a person to apply for the amendment of information concerning their personal affairs. The section states:

39 Right to apply for amendment of agencies’ records

A person to whom access to an agency’s document has been given may apply for the amendment of the agency’s records:

(a) if the document contains information concerning the person’s personal affairs, and

(b) if the information is available for use by the agency in connection with its administrative functions, and

(c) if the information is, in the person’s opinion, incomplete, incorrect, out of date or misleading.

16 The word ‘agency’ is defined in s 6(1) as including a Government Department. Pursuant to Schedule 3, Part 3 of the FOI Regulation 2005, the District Court is included in the Attorney General’s Department. However, s 10 provides an exception in respect of the ‘judicial functions’ of courts and tribunals:

10 Act not to apply to judicial functions of courts and tribunals

(1) For the purposes of this Act:


(a) neither a court nor a person who is the holder of an office pertaining to a court shall, in relation to the court’s judicial functions, be taken to be, or to be included in, an agency, and

(b) neither a registry or other office of a court nor the members of staff of such a registry or other office shall, in relation to those matters that relate to the court’s judicial functions, be taken to be, or to be included in, an agency.


(2) For the purposes of this Act:

(a) neither a tribunal nor a person who is the holder of an office pertaining to a tribunal shall, in relation to the tribunal’s judicial functions, be taken to be, or to be included in, an agency, and

(b) neither a registry or other office of a tribunal nor the members of staff of such a registry or other office shall, in relation to those matters that relate to the tribunal’s judicial functions, be taken to be, or to be included in, an agency.

17 The terms ‘judicial functions’ is defined in defined in s 6(1) as follows:

‘judicial functions’ , in relation to a court or tribunal, means such of the functions of the court or tribunal as relate to the hearing or determination of proceedings before it, and includes:

(a) in relation to a Magistrate - such of the functions of the Magistrate as relate to the conduct of committal proceedings, and

(b) in relation to a coroner - such of the functions of the coroner as relate to the conduct of inquests and inquiries under the Coroners Act 1980.

The Department

18 Ms Hartman, for the Department, submitted that the Certificate is a document created by the Assistant Registrar of the District Court in her capacity as a judicial officer and pursuant to her judicial functions, and is an official court record or minute. The Certificate should be considered as part of the judicial functions of the Court or as very closely related to those functions.

19 Pursuant to s 10(1)(a) of the FOI Act, the Assistant Registrar of the District Court, being a person who holds an office pertaining to a court, is not an ‘agency’ for the purpose of the FOI Act in relation to the District Court’s ‘judicial functions’, as defined in s 6(1), nor is the Assistant Registrar an ‘agency’ in relation to those matters that relate to the Court’s judicial functions (s 10(1)(b)). Ms Hartman rejected HO’s submissions in relation to the meaning of ‘administrative functions’ as not being relevant. The issue turns on whether the Certificate falls within the exemption in s 10, and, in particular, whether the Assistant Registrar’s actions are found to relate to the judicial functions of the Court: Budd v Director, Attorney General’s Department [2006] NSWSC 1267, at paragraph 20 (per Bell J).

20 Ms Hartman referred to the decision in N v Director General, Attorney General’s Department (GD) [2002] NSWADTAP 41, at paragraph 12, where the Appeal Panel referred to the meaning of the phrase ‘judicial functions’ as:

“‘judicial functions’ are confined to functions relating to ‘the hearing or determination of proceedings’ and the meaning of ‘judicial functions’ in any other legislation is not applicable.”
The Panel said, at paragraph 30, that the word ‘proceedings’ in the definition of ‘judicial functions’ in s 6(1) means “invocations of a tribunal’s jurisdiction, in other words, applications to a tribunal to do some authorised act”.

21 Ms Hartman noted that the words ‘relate to’ in the s 6(1) definition must also broadly interpreted: NZ v Director General, Attorney General’s Department (GD) [2005] NSWADTAP 62, at paragraph 8, approved by the Supreme Court in Budd.

22 Ms Hartman submitted that whether or not a court or tribunal is exercising judicial functions must be determined as at the time the document is created. Here the Certificate was created by the Assistant Registrar in response to a request from HO. An Assistant Registrar is appointed under the Public Service Act 1979 and may perform the functions of a Principal Registrar. The Certificate was created pursuant to s 178 of the Evidence Act 1995 and is evidence of HO’s acquittal. Pursuant to s 178(2), such a certificate may be “signed by a judge, magistrate or registrar or other proper officer of the applicable court”. Ms Hartman submitted that the creation of such a certificate, by a court officer, plainly ‘relates to’ the hearing and determination of proceedings. Thus, the creation of the Certificate in the present matter falls within the exemption in s 10(1)(b) of the FOI Act.

23 Ms Hartman noted the Registrar of the Court has no power to make the amendment requested, which needs to be effected in accordance with the District Court Act 1973. To effect an amendment, HO should apply to the Court by way of Notice of Motion served upon the Director of Public Prosecutions and filed in the Registry.

HO

24 HO said the Certificate was created after the conclusion of the judicial proceedings in response to his request for such a certificate. It is not a document created by the Court as part of its judicial functions but, rather, is of an administrative nature, and therefore, not excluded by s 10. HO referred to the decision of the President of the Tribunal in N (No 3) v Commissioner of Police, NSW Police Service (2002) NSWADT 34, at paragraph 35, where the President discussed the meaning of the term ‘administrative functions’ in s 39 of the FOI Act. He noted that this decision was upheld on appeal in Commissioner of Police NSW Police Service v N [2003] NSWSC 943, where Cripps JA endorsed the President’s interpretation.

25 HO referred to the functions and powers of an Assistant Registrar set out in the District Court Act 1973 and District Court Rules 1973, including both judicial or quasi-judicial functions and administrative functions. HO considered the meaning of ‘administrative functions’ and ‘judicial functions’ in the context of the FOI Act, citing a number of decisions in which the meaning of these words has been considered. He submitted that the words “relate to the hearing or determination of proceedings before it” in the s 6(1) definition of ‘judicial functions’ suggests that only documents of a type that are closely connected to and relate to the judicial functions of the court or tribunal are included in the s 10(1) exemption. Such documents do not include documents that were not a part of the court proceedings or determination and, relevantly, do not include the creation of certificates of acquittal or conviction.

26 HO noted that s 178 of the Evidence Act 1995, while recognising that a certificate of conviction or acquittal is evidence of that fact, does not itself authorise the issue of such a certificate. HO submits that this lack of statutory authority attests to the administrative rather than judicial nature of the action of issuing a certificate.

27 HO refers to the inaccurate wording of the Certificate and suggests that this is indicates the Certificate was created by a clerical and not a legally trained officer of the Court Registry. He submits this indicates that the issues of certificates is a clerical or administrative exercise and not an exercise of ‘judicial functions’: Re Altman and the Family Court of Australia (1992) 27 ALD 369, see especially O’Connor J at 373.

Discussion

28 The District Court Act 1973 provides for the appointment of registrars and assistant registrars, whose functions are prescribed in the Act (see, for example, ss 18H, I, and J). Relevantly, in terms of the section 10(1) of the FOI Act, an assistant registrar is, in my view, clearly “the holder of an office pertaining to a court”. Thus, the relevant issue in this case is whether the Assistant Registrar’s issue of the Certificate was an action taken “in relation to the court’s judicial functions”. If it was such an action, then it is not to be treated as the action of an ‘agency’ (as defined in s 6(1)), thereby excluding it from the provisions of the FOI Act.

29 As noted above, the term ‘judicial functions’ is defined in s 6(1) as meaning “such of the functions of the court or tribunal as relate to the hearing or determination of proceedings before it”.

30 HO referred to the decision of the President of the Tribunal, O’Connor DCJ, in N (No 3) v Commissioner of Police, NSW Police Service (2002) NSWADT 34, at paragraph 35, where the President discussed the meaning of the term ‘administrative functions’ in s 39 of the FOI Act:

“In my view the term ‘administrative functions’ is used in s 39 to refer to all those functions performed by the agency which relate to the management and execution of its responsibilities as derived from common law, statute or governmental arrangements. In the present instance the personal records in issue have been created in connection with the execution by the agency of its key responsibility, the enforcement of the criminal law.”

31 That case involved an application for amendment of various ‘operational’ Police documents containing information concerning the applicant’s personal affairs. The Police contended that the information contained in the documents to which access had been granted was not information “available for use by the agency in connection with its administrative functions” (s 39(b)). At paragraph 37, the President said that, in his view, “the expression ‘administrative functions’ as used in s 39(b) covers documents that are held for operational purposes”. He held that the documents in issue were available for use by the Police in connection with its administrative functions.

32 The decision was upheld on appeal in Commissioner of Police NSW Police Service v N [2003] NSWSC 943, where, at paragraph 17, Cripps JA, endorsed the President’s interpretation of the phrase ‘administrative functions’:

“As a matter of statutory construction in my opinion the learned President was correct in his determination that the words ‘administrative functions’ were not intended to be a description of one set of functions among many but rather that they were used in a generic sense and that, as His Honour said: “... the term ‘administrative functions’ is used in s 39 to refer to all those functions performed by the Agency which relate to the management and execution of its responsibilities as derived from common law, statute or government arrangement”.”

33 In my view, while these decisions provide guidance on how the phrase ‘administrative functions’ in s 39 should be interpreted, they do not provide more specific guidance on the interpretation of the phrase ‘judicial functions’, which is the relevant issue in these proceedings.

34 Such guidance is available in a decision of the President of the Tribunal in N (No. 2) -v- Director General, Attorney General's Department [2002] NSWADT 33. The President noted, at paragraph 12, that s 10 “operates as a qualification to the ordinary definition of agency”. The President commented, at paragraph 31, that the definition of ‘judicial functions’ in s 6(1) “is relatively broad”. At paragraph 32, he noted the use of the words ‘relate to’ in the definition, and referred to the interpretation of the similar words ‘in connection with’ in the Federal Court decision in Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465. In that case, Wilcox J observed, at 478:

“the words ‘in connection’ with have a wide connotation requiring merely a relationship between one thing and another. They do not necessarily require a causal relationship between the two things ...”

35 The President noted His Honour’s reference to a Canadian trial judge's ruling that the words “include matters occurring prior to as well as subsequent to or consequent upon so long as they are related to the principal thing”. The President agreed with counsel for the respondent that “the words ‘relate to’ have a similar broad connotation” (paragraph 33).

36 The Appeal Panel dismissed an appeal against the President’s decision in this matter in N v Director General, Attorney General’s Department (GD) [2002] NSWADTAP 41. The Appeal Panel referred to the meaning of the phrase ‘judicial functions’ at paragraph 12:

“Both parties made lengthy submissions about the meaning of the term ‘judicial functions’. In our view those submissions were largely unnecessary because s 6 defines ‘judicial function’ to mean “such of the functions of the court or tribunal as relate to the hearing or determination of proceedings before it.” If the word ‘means’ is used in a definition, that definition is intended to be exhaustive. ( Sherritt Gordon Mines Ltd v FCT (1976) 10 ALR 441 at 455; Douglas v Minister for Aboriginal Strait Islander Affairs (1994) 34 ALD 192 at 203.) Consequently, ‘judicial functions’ are confined to functions relating to “the hearing or determination of proceedings” and the meaning of ‘judicial function’ in any other legislation is not applicable.”

37 At paragraph 33, the Appeal Panel agreed with “the respondent’s observation, that it is significant that the FOI Act defines ‘judicial functions’ more broadly than the act of hearing or determining proceedings”.

38 In the present matter, parties referred to a number of other decisions where the meaning of the words ‘relate to’ was considered: for example, Re Dingjan and ors ex parte Wagner and anor (1995) 183 CLR 323; NZ v Director General, Attorney General’s Department (GD) [2005] NSWADTAP 62; Budd v Director, Attorney General’s Department [2006] NSWSC 1267. In my view, it is clear these words should be interpreted broadly as denoting a connection or relationship with, in this instance, “the hearing or determination of proceedings” by the court.

39 It is also clear that a broad interpretation should be accorded to the phrase ‘judicial functions’. Thus, relevantly, in this case, such functions should, in my opinion, be interpreted as including action taken after the act of hearing or determining the proceedings, provided such actions “relate to” the hearing or determination of proceedings.

40 I accept that an assistant registrar has administrative as well as judicial functions, as is apparent from the ‘Position Description’ for that office provided by HO. In my view, in this case, the Assistant Registrar’s action in creating and issuing the Certificate does ‘relate to’ the Court’s judicial functions because, despite being made after the conclusion of the proceedings, it certifies the nature of the outcome of the proceedings. I also note that the Certificate is evidence of the fact of HO’s acquittal: Evidence Act 1995, s 178(2). Thus, s 10(1)(b) of the FOI Act is applicable to exclude the operation of the Act in relation to the Certificate in issue. That being so, the Tribunal is without jurisdiction to hear HO’s application.

Decision

41 Pursuant to s 10 of the FOI Act, the Tribunal has no jurisdiction to review the decision refusing to amend a document containing information concerning HO’s personal affairs.