Kline v Official Secretary to the Governor General and Anor

[2013] HCATrans 259

[2013] HCATrans 259

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B47 of 2013

B e t w e e n -

KAREN KLINE

Appellant

and

OFFICIAL SECRETARY TO THE GOVERNOR GENERAL

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

FRENCH CJ
CRENNAN J
KIEFEL J
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 30 OCTOBER 2013, AT 10.19 AM

Copyright in the High Court of Australia

MR R. MERKEL, QC:   If the Court pleases, I appear with my learned friend, MR E.M. NEKVAPIL, for the appellant.  (instructed by Bartley Cohen Solicitors)

MR J.T. GLEESON, SC, Solicitor‑General of the Commonwealth of Australia:   If it please the Court, I appear with MS N. KIDSON and MR C.L. LENEHAN, for the first respondent.  (instructed by Australian Government Solicitor)

FRENCH CJ:   I note a submitting appearance for the second respondent.  Yes, Mr Merkel.

MR MERKEL:   If the Court pleases, we have handed up our outline of oral submissions to your Honours. 

FRENCH CJ:   Yes, Mr Merkel.

MR MERKEL:   If the Court pleases, the decision of the AAT did not state with precision the question that it was deciding, which was the subject of a direction at an earlier stage.  To resolve any doubt about this, could I hand up to your Honours the formulation of what the AAT in fact was deciding.  We have set it out in paragraph 1 of our outline of submissions. 

The confusion arises – and I do not need to take your Honours there but I ask your Honours just to note it – the AAT decision at paragraph 3 at appeal book 178 and appeal book 185, paragraph 24 stated the question in a slightly different way, but the way in which the matter was conducted before the AAT and the Full Court was that the documents need not be considered or examined and the case was to be determined entirely on the basis of the terms of the appellant’s request for access and the question for decision was whether the request for access to documents was capable of covering documents that relate to matters of an administrative nature.  The AAT found against the appellant on that and that decision was upheld by the Full Court.

There was also an error in what the AAT said about this matter only concerning a few documents.  It is my understanding that no documents were in fact before the AAT or examined by it but in the transcript at an earlier stage, Mr Flanagan of senior counsel, who was representing the Official Secretary, had identified that there was some 400 documents of 1,500 pages that would answer the description of the appellant’s request for access, putting to one side the documents which were given voluntarily to the appellant outside the FOI Act and that it was accepted by the parties that if the appellant succeeded on the preliminary question then the matter would go back to the AAT to consider the documents and whether exemptions applied to them.

Can I take your Honours to the appeal book at pages 7 and 8 which identify the documents in issue before your Honours at this stage?  At page 7 the Official Secretary’s Office set out at paragraphs 1(a) to 5 the documents that were the subject of two requests by the appellant.  Can I just go through those?  Paragraph 1(a) was provided to the appellant and therefore is not in issue but provided outside of the Act.  Paragraph 1(b) was responded to on the basis that that document does not exist.  Paragraph 2(a) was provided as with 1(a) but outside of the Act and 2(b) was responded to on the basis that it was not related to a matter of an administrative nature.  Paragraph 2(c) was said not to exist and 3, 4 and 5 were responded to in the same way as 2(b) which was that they are not related to matters of an administrative nature.

So the items in the request in issue in this case are 2(b), 3, 4 and 5 and on the material that would cover some 400 documents which would have to be considered by the AAT if we are successful on the appeal. Can I go to what appears to be the area of agreement between the parties? The parties appear to have reached common ground that sections 5, 6 and 6A have a cognate operation which makes the legislative history of sections 5 and 6 of critical significance in understanding the circumstances in which section 6A was enacted which covers the Governor‑General’s Office.

The parties, though, disagree really on the construction of the criterion relates to matters of administrative nature.  We have sought to approach that criterion on the basis that documents either fall within it or outside it and we have tried to draw a boundary between two categories of documents which we say are the correct categories to be analysed – documents that do relate to matters of an administrative nature and documents that do not relate to matters of an administrative nature.

When we try to go to the background and understand how these categories are to be approached, it is fairly clear from the headings to the sections and Schedule 1, that what the legislature was concerned with were documents relating to administrative functions of the court’s specified tribunals and official secretary and not their non-administrative functions.

This is a fundamental difference between the parties because the Official Secretary’s view in the construction of the Act is that it really is limited solely to documents relating to the administration within the office of the Official Secretary and is unrelated to any function of assisting the Governor‑General, which would be the narrowest possible reading of the Act and that statutory scheme. 

We have responded to that submission with our definition which is that given the role of the Official Secretary and the registries of the courts and specified tribunals documents will relate to matters of administrative nature if they relate to administrative tasks carried out by or within the registry or other office of the Court or the office of the Official Secretary to support or assist the exercise of the powers or the discharge of the functions by the court, tribunal or the Governor‑General in a particular matter or context.

We accept that the line to be drawn between administrative and non‑administrative matters is that if the documents disclose the decision‑making process involved in the exercise of the powers or functions in a particular matter or context, and by that we give it not a constitutional meaning in the sense of a controversy but a particular nomination for honours or a particular decision of a court or a member of the Tribunal, and by that it may not necessarily be an adjudicative decision, so going to the Fingleton‑type of situation, if the court, or the Chief Justice of the court, makes a decision to assign a particular judge to a particular case or to create a particular bench, assign judges to a particular bench for a particular case, that would be a decision which falls within the exercise or power or discharge of functions in a particular matter or context.

GAGELER J:   So relating that to the categories of documents in issue, you would accept that category 5 falls outside the category of documents of an administrative nature?

MR MERKEL:   No, your Honour, it may well fall outside on examination.  It could not on its description alone fall within the category because we do not know from the description whether it discloses the decision‑making process.  We have no idea what those documents disclose. They may be really just a pure matter of administration or they may disclose the decision‑making process. 

The subtlety of that question was explored by Justice Gaudron in the two Herijanto Cases where interrogatories were sought to be given to the Refugee Review Tribunal to try and ascertain what it did and did not have regard to in a particular matter and her Honour disallowed any interrogatories that could indirectly disclose the decision‑making process but if it does not disclose the exercise of a power or function or does not disclose some step in the decision‑making process it may well be a file note that has a purely administrative content, not substantive.

CRENNAN J:   From your test, Mr Merkel, somebody would have to look at every document, look at the substance of the document and you do not contemplate a category of documents which relate to full and frank discussions of the merits of an application or nomination.

MR MERKEL:   Well, your Honour, by definition, whether it relates to matters of an administrative nature requires you to look to the content of the document to see if it has that category.  If, for example, a request were for the reasons for rejection of a nomination, that on its face would relate to a non‑administrative matter, but if the request is in entirely neutral terms the answer is yes, the documents need to be looked at, as they were in this case.

FRENCH CJ:   Why is that so?  You are seeking access to a class of documents on the basis they fall within an exclusion from the non‑application of the Act under section 6A.  Now, you seem to be saying that the class of documents which you identify in relation to, say, class 5 are capable of encompassing documents within that category and outside that category.  That is obvious on the face of it.  Why should you not be required to identify a class of documents in such a way that it is clear that it is either within or outside the scope of the exclusion?

MR MERKEL:   Your Honour, could I say at the outset that point, namely, that the request is not a proper request for the purposes of the Act, has not arisen to date but we would say, your Honour, that given that the Act operates to define a document as a part of a document which may include administrative and non‑administrative matters and given the facility in the Act under section 22 to edit out what might be exempt material, it would be imposing a considerable burden on an applicant who usually is a lay person in this context to have to wade through the definition of “administrative” and “non‑administrative” to put in a valid request. 

That would seem to defeat the purpose of the Act.  The persons who are really able to understand these distinctions are not the lay persons for whom this Act was substantially created, but the persons who administer it and would understand within the courts, tribunals – and we are talking about the whole range of government on the point your Honour the Chief Justice raises with me.

CRENNAN J:   But is not a lay person liable to easily understand the difference between documents about efficient administration, on the one hand, and documents concerning the deliberations in relation to the nomination on the other?  There might be some middle ground which is more difficult but it is at least possible, is it not, to start with a simple division, anyway, that is easily accessible.

MR MERKEL:   Yes.

CRENNAN J:   Documents relating to administrative efficiency, on the one hand, and documents relating to deliberations on the other.

MR MERKEL:   Your Honour, that is right and we readily accept that any document that would disclose the process by which the Council made a recommendation to the Governor‑General would clearly be a non‑administrative matter and outside the terms of the request.  But we are looking at a request to the Official Secretary who is the repository of the documents that would relate to the administration of the Order of Australia and not necessarily the documents that would be in the possession of the Council of the Order. 

But, putting that to one side, what we say – we will concentrate on paragraphs 3 and 4 which would satisfy your Honour the Chief Justice’s description of matters that on their face appear to be administrative and do go to the way in which the Office is effectively administering, on the basis of manuals and so forth, the Order of Australia.  We were going to draw an analogy with ‑ ‑ ‑

FRENCH CJ:   I am sorry, what does that mean?  When you say you are going to focus on those, are you pursuing what is in 2 and 5?

MR MERKEL:   We pursue what is in 2(b) and 5, your Honour, on the basis that the AAT was not able to say those matters were not related to matters of administrative nature.

FRENCH CJ:   Well, do you accept that the – just to deal with this – do you accept that the class:

all correspondence held by the Official Secretary in relation to the appellant’s 2009 nomination –

would encompass referees’ reports? 

MR MERKEL:   We do not know, your Honour.  It may, but we do not know.

FRENCH CJ:   Well, it is a class wide enough, surely, to encompass referees’ reports.

MR MERKEL:   As we do not know the content, we cannot answer that, your Honour.  It may be said to be likely or possible ‑ ‑ ‑

FRENCH CJ:   Well, you did have referee reports in the wider class in 2.  I am just looking at what you have underlined at paragraph 11 of your submissions which are the matters on which your ‑ ‑ ‑

MR MERKEL:   I think it is the same documents that I have just taken your Honours to.

FRENCH CJ:   Yes, that is right.

MR MERKEL:   Yes.

FRENCH CJ: So referee report is a letter to the Honour Secretariat – that is by section 13 or whatever held to be a document of the Official Secretary – section 13 of the Governor‑General Act.  I am sorry, it is the FOI Act but, in any event, that class:

all correspondence held by the Official Secretary in the relation to the . . . nomination –

must surely embrace material that is to be letters that have been obtained that may be put before the Council for the purpose of its decision‑making.

MR MERKEL:   Your Honour, can I assume the answer to that question is yes, but that still raises a question left unanswered by the AAT in the Full Court’s approach to this.  If the Full Court and the AAT asked the wrong question, which we say they did on our submissions, then the matter needs to be remitted for them to ask the right question.  But there is an issue, and I can understand the force of the case against us on this, but there is an issue based upon the decisions I will take your Honours to whether the decision‑making process commences with the consideration by the counsel of the material sent to it, not with the material gathered as of course by the official secretary through the manuals and the normal run of inquiries.  When one looks at the decisions of the Court in regarding of, say, for example, the judicial process, it is the decision made by the court, tribunal, or the individual concerned that is the critical point that is protected. 

I can understand the force of an argument that the materials sent under a manual would properly be part of a decision‑making process, but it is anterior to the commencement of the process by the counsel.  So that question needs to be answered, and if it is answered against us that the decision‑making process commences for the purposes of this analysis with the material that is gathered by the official secretary, then that material would be not relating to an administrative matter.

KIEFEL J:   Well, the descriptor that you use for the purpose of establishing the class of documents which you say falls within administrative documents is any document which shows the decision‑making process in action, but the analogy here with a court’s process of determination is not really apt, is it, because here the Chancellor or the Council determine the guidelines and criteria by which a decision will be made and so the decision‑making process with respect to the Council’s recommendation and the Chancellor’s consideration may arguably start with the determination of the guidelines and criteria themselves.  So, not only would they be those documents as necessary to what is to be encompassed in the decision‑making process but everything that happens after that, and that would take out most of number 3 on the list.

MR MERKEL:   Your Honour, we would say that the content of the manuals would have to be considered to be able to answer your Honour’s question.

KIEFEL J:   Why?  I mean, it is obviously to do with the decision‑making process.  There is no other criteria or guidelines in either the letters patent or the Constitution of the Order of Australia, they have to be established.  They are established by the Council or the Chancellor, that is the decision‑making process.

MR MERKEL:   Your Honour, that is why we say that what is protected, and it would undermine the policy of the Act if that approach were taken, but what is protected in the submission that we are putting is the decision‑making process in respect of particular nomination.

KIEFEL J:   Quite so, but what is on your argument, perhaps the respondent has another view, but the question is what is the process and when does it start?  How do you identify the beginning of the process and how do you include guidelines and criteria established by the Council for the purpose of that process?

MR MERKEL:   Our answer to that question, your Honour, is the process can start no earlier than the receipt of the nomination and once that process starts what is generated by the procedures provided for in the manual, on the worst position, we would say that could be taken against us, or the widest position, would include the material gathered as a result of inquiries made pursuant to the manual but the manual itself predates the entirety of the decision‑making process.

KIEFEL J:   Some chronological approach rather than what is substantively part of the decision‑making process of the Council.

MR MERKEL:   We say, your Honour - I mean we will come to the Act and look at the role of section 8A about operational information but can I give your Honour an analogy that we would draw, if one goes to say the Federal Court docket system, the court is a prescribed tribunal and if we can assume that there is a manual in the registry about how the docket system is to be operated by registry when a case comes in, it is allocated in a particular way and if there are panels, it gets allocated to panels and if that docket system had a provision for the chief justice to override that process in a particular case, and that happened, what we would say is that the manual itself, as to the docket system, it would be required to be published under section 8A of the Act because it would be operational information that affects individuals because their cases are allocated pursuant to it, but that would not be part of the decision‑making process even though it was integral to how cases came to be heard by a particular judge. 

But if, for example, the chief justice overrode that and said in a particular case “I would wish judge X to sit”, then you have the Fingleton‑type of case and that decision would itself be a non‑administrative matter or relate to a non‑administrative matter because it is part of or closely connected to the adjudicative function but the idea of having guidelines and manuals that merely give directions as to the kind of information that should be sought and the steps that should be taken to gather information, divorced from the context of a particular nomination, we say would be classically a document that is prepared to assist the registry in supporting its function of assisting the Governor‑General or the Council.

KIEFEL J:   Quite.  Well, one might accept that if the manuals and guidelines we are talking purely about process and administrative efficiencies in the sense of saying, for example, any application received will be sent to Council members by post; Council will meet on these dates and the like.  That might fall within the category you have just mentioned but criteria for a matter to be the subject of a recommendation to the Governor?  How would that possibly not be within the decision‑making process?

MR MERKEL:   Your Honour, we do not know and there is no evidence that it would set out the criteria which is to be applied by the Council.  We would assume it would merely relate and insofar as it relates to the way in which material is gathered, it is classically administrative.  If it goes to something more substantive then, on being inspected, a decision might be made that it discloses aspects of the decision‑making process and therefore that part of it is not relating to an administrative matter and therefore would not be shown.  It would be part of a document relating to other matters that would be shown but the exclusion of the category altogether, we say, can only occur if the question of law that has been raised in this case is answered in effect in the Official Secretary’s favour, that is it must relate solely to what is going on in the office.  We call it the staplers and the pens the office uses.  It has nothing to do with how effectively the administration is being conducted or managed.

KIEFEL J:   Speaking for myself, I am just becoming a little confused about just what it is this Court is being asked to do.  Are we being asked to establish some descriptor for the purposes which may be applied to documents of this kind or, from your point of view, are we simply being asked to come to a conclusion that it is all so vague that it has to go back and be remitted and the Tribunal required to go through each document with a very general description of anything relating to actual decision‑making process may be excluded.  That is really what you are asking us to do.

MR MERKEL:   I would prefer to put it a little more precisely and differently, your Honour.  What we are saying is that the question arising is the proper construction of section 6A and what do the words “relates to matters of an administrative nature” mean?  How are they to be construed?  To date they have been construed, in effect, in an inverted way.  Anything that relates to a substantive function is not administrative and we say that is not correct for the reasons we have endeavoured to outline but ‑ ‑ ‑

KIEFEL J:   You limit it to anything relating to the actual decision‑making process applied in the particular case.  Is that how you would describe it?

MR MERKEL:   We would say a non‑administrative matter – and we do it by analogy with the judicial immunity from discovery and the way in which Justice Gaudron outlined that immunity and its boundaries in the two Herijanto Cases - we would say that “relates to matters of an administrative nature” – “relate to” is a term of the widest import, can be narrowed by context and history and so forth but it means does it relate to the administrative tasks carried out by the Official Secretary and the Official Secretary’s employees to assist the Governor‑General and, in this case, the Council. 

But if the matters to which the documents relate disclose the decision‑making process in a particular case, then that loses its character or no longer has a character of an administrative nature because it relates to a non‑administrative matter which, we say, must be the way in which this section works.  It has to have a boundary between the dichotomy the section draws and, we say it is administrative and non‑administrative. 

Now, it may be that the procedural manual on a proper view will be seen to disclose aspects of the process which would reflect how the Council wish to assess a particular application but we say that on its face it does really relate to administrative tasks unrelated to any particular case which would classically be the way in which the office administers its tasks.

It has a broader import, your Honours, than just efficiencies within the office.  Efficiencies in the office cannot be looked at in a vacuum.  Also, the parliamentary speeches talk about how the office is managing its affairs and how effectively it is managing its affairs.  That must be related to how effectively it is managing its task of assisting the Governor‑General or the Council.  If the manuals, for example, themselves evidence that the processes are being engaged in very inefficiently, we would say that would be lying at the heart of what the Act is saying the public have a right to access to.

We say the real point of difference between ourselves and our learned friends is the public interest that is sought to be protected by what is excluded from section 6A, and the public interest, we say, is the independent and impartial discharge by the Governor‑General of her functions.

KIEFEL J:   The respondent says that has already been determined by legislating for an immunity with an exception.

MR MERKEL: Well, we say that that submission is difficult to reconcile with the acceptance that the same words in section 6 and section 5 have the public interest which we contend for. They do not seem to dispute that. They have to erect an interest of confidentiality which we say is not supportable by any of the decisions concerning the Governor‑General and has long been put to one side in terms of secrecy of the councils of the Crown. We say that there is simply no support for a different public interest in section 6A to that which is evident in sections 5 and 6, and once the function is – the purpose of the exclusion is to protect independence and impartiality of the three entities we are concerned with.

CRENNAN J:   You do accept though, do you not, Mr Merkel, that there is a public interest in preserving confidentiality in the deliberations?  I thought you did accept that.

MR MERKEL:   We accept that that is the means by which the public interest of independence and impartiality is given effect to.  That is a means to give effect to that public interest.

CRENNAN J:   I am not sure I follow whatever distinction you are making.

MR MERKEL:   Your Honour, we say that the way in which ‑ ‑ ‑

CRENNAN J:   In all the discussion in relation to the manuals, I thought the basic premise underlying the discussion was that you were seeking to accept that deliberations in relation to the decision‑making in respect of any individual nomination, that there was a public interest in preserving confidentiality in those aspects of the ‑ ‑ ‑

MR MERKEL:   We say, your Honour, the public interest in preserving confidentiality is purely for the purpose of serving the public interest of maintaining independence and impartiality in decision‑making and therefore that ‑ ‑ ‑

CRENNAN J:   What does that mean?  Does that mean there is not confidentiality in the deliberations?

MR MERKEL:   No, there is confidentiality in the deliberations because it is necessary to protect the public interest of independence.  That is certainly the way the judicial immunity has been developed and it is certainly the way in which, if one looks at the Canadian case of MacKeigan and Fingleton, it was not secrecy about the process of appointment of the judges to the bench that really was the driving force behind those decisions.  It was the necessary element of protecting independence and impartiality that those processes not be open to public scrutiny, therefore the consequence, the means by which that protection comes about, is through confidentiality.  But this Act does not give confidentiality or secrecy to the Governor‑General’s documents.  We will take your Honours through the Act, but to say the Governor‑General has an immunity under this Act we say is not correct at all.  The Governor‑General’s documents are subject to FOI inspection if in the hands of other agencies, for example.  The only exemption or exclusion ‑ ‑ ‑

CRENNAN J:   Do you mean here the official secretary’s documents?

MR MERKEL: No, the Governor‑General, because the person whose independence and impartiality is sought to be protected under this Act is the Governor‑General, not the official secretary, and the Governor‑General is in a similar situation; two judges of the courts or members of the tribunals. There are provisions of this Act which I will take your Honours to that are designed to protect the secrecy of information as opposed to exempt persons from being covered by the Act, which means they are exempted from the right of access given by section 11 and the obligation to publish in section 7, but that does not given them secrecy.

So if the Governor‑General’s documents of whatever kind were in the possession of any agency, they would be subject to the FOI Act and the public interest would then be protected by the exclusions in Part IV.  So we say there is nothing in this Act that would give the Governor‑General any special status or position.  There is, for example, for ASIO in respect of intelligence or defence information.  So when we take your Honours to the Act the very premise which our learned friends put forward, that confidentiality of this process is protected by the Act, we say is just not supported by the Act, nor is it supported by the legislative history.

CRENNAN J:   Well, is not part of the independence you were speaking of in relation to the judges or the Governor‑General part of that independence requires, does it not, full and frank discussions in relation to the merits of a nomination for argument’s sake?

MR MERKEL:   Absolutely.

CRENNAN J:   So, it is no different from a judge independently and impartially making a ‑ ‑ ‑

MR MERKEL:   We do not have any problem with what is a decision‑making process in a particular matter, but when it gets ‑ ‑ ‑

CRENNAN J:   Confidentiality is the right word to use, is it not, in relation to the reason for protecting the deliberations?  In other words, the full and frank discussion is related to the independence and impartiality to which you have referred.

MR MERKEL: We agree with that but, your Honour, if one looks – that is why we say it is so important to understand the legislative history of 5 and 6 and what was really sought to be exposed and what was sought to be protected. When you see how sections 5 and 6 emerge, it is purely in respect of any documents that would impinge upon the independence of the judiciary or the tribunals that were sought to be protected, not by secrecy, but by not exposing them to the rights conferred or the obligations imposed by this Act.

So we say that to conflate secrecy and independence and impartiality is to conflate the ends with the means by which they are sought to be achieved.  One sees this come out very clearly in MacKeigan and Fingleton, which are boundary cases in the sense that they do relate to administer tasks of appointing a judge or a magistrate, but they are so integrally related to the judicial task that they are protected from public scrutiny by the particular statutory scheme in question or the particular constitutional principles that creates independence of the judiciary.  But we say secrecy in itself is dealt with in this Act in a very, very different way.

BELL J: One can observe that the exclusion of the documents of the Official Secretary under section 6A is approached in the same way as are the exclusions under sections 5 and 6 but there may be, may there not, different policy reasons for excluding documents under 5 and 6 respecting courts and tribunals from the exclusion of documents of the Official Secretary? On the face of things these are bodies performing very different functions.

MR MERKEL: Your Honour, we absolutely accept the last statement that your Honour puts but if we look at it chapter – section 5 is concerned with Chapter III courts. Section 6 is concerned with tribunals that fall under Chapter II but have a process of conciliation and arbitration which attracts the rules of natural justice inherent in arbitration in section 51(xxxv) and in the statutory schemes.

FRENCH CJ:   I think the Attorney‑General in the committee debate on this provision equated them to the judiciary from the point of view of the public.

MR MERKEL:   Interesting that the parliamentary – the committee report was more concerned about the conciliation function being full and frank, rather than their independent arbitration, but I think Senator Evans pulled them back into the independence ‑ ‑ ‑

FRENCH CJ:   I was talking about Senator Durack’s remarks.

MR MERKEL: With respect to the Senator, he foresaw the problem that this criterion created of a very uncertain line which this case really raises. Can I go back to what your Honour Justice Bell put to me? It is undeniable that the three entities have very different functions and nothing can be clearer than conciliation in section 6 which is not part of the process of the judicial power under section 5. The Governor‑General also has totally different functions but properly understood, the Governor‑General’s functions do attract and can more importantly be seen by Parliament to attract the same requirements of independence and impartiality enable – allow her to discharge her functions and exercise her powers.

Can I just indicate - and I will come to this later - that the oath of the Governor‑General is in identical terms to the oath of a judge of the High Court, “without fear or favour” which Chief Justice Gleeson observed in Fingleton is the basis for impartiality.  But if one goes to the way in which the cases have evolved concerning the Governor‑General with Northern Land Council, FAI v Winneke and more recently in the United Kingdom which is on the same principle, here, it depends upon the nature of the decision made that subjects that decision to judicial review.

So if the Governor‑General, whose oath also requires her to act according to law, were provided with an advice that was contrary to law, the Governor‑General has to decide that in accordance with her oath, without fear or favour, with impartiality and independence.  The fact that she acts on the advice of Council is not, as was made clear in FAI v Winneke, not a rubber stamp. We say integral to her role in the Constitution and any statutory function she has, and particularly with respect to the reserve powers, independence and impartiality can readily be seen to be attributes which she would be expected to have and Parliament would be expected to respect and we say that 6A does no more and no less than that.

But what we do say is it does not seek to elevate the protection that the Governor‑General has to something higher than the protection the courts and the tribunals have.  So that is why we say the cognate construction our friends agree to makes it a very strained reading indeed if one goes to their construction which is the alternative because in the end it is a difficult question and we do not shy away from that; Senator Durack observed that correctly. 

Their construction does two things.  Firstly, it says it must solely relate to the internal administration within the office, that means within the registry, so the way in which the registry administers the task of assisting the court has nothing to do with the FOI Act.  The word “solely” reads the words “relating to” to its narrowest possible connection and they then put an exclusion which is what the basis of the Full Court’s decision was, but it must not relate to any substantive function.

When one considers that the sole task of the Official Secretary is to support the substantive functions of the Governor‑General, they have virtually read the words down to its narrowest possible operation. They quite frankly to their credit accept that this gives an overreach to the public interest even that they are seeking to protect of confidentiality because it may protect non‑confidential material. But we say why would that overreach occur in section 6A. Then they go to say that overreach extends to sections 5 and 6 by the cognate operation submission.

Now, we do not submit that that construction is totally unsupportable but we do submit that in the context of the FOI Act one would have to find a compelling public interest identified that requires that construction, and we find nothing in the statutory scheme that would support it.

BELL J:   The Council is neither an agency nor a prescribed authority.  Is that so?

MR MERKEL:   Correct.  No, it is neither an agency nor a prescribed authority because they have no statutory basis.  That would be correct.

GAGELER J: Mr Merkel, could I take you back to your test rather than your opponent’s test and its application to section 5. How would it apply to two categories of documents? One is a bench book, which is one of the examples your opponent gives. The other is documents relating to a tender that is let for the refurbishment of a court building by the court itself.

MR MERKEL:   The bench book we would say - again it would depend on its contents – would be in that grey area.  Chief Justice McLachlin identified it quite well in Hickman v MacKeigan when her Honour recognised the problems – Hickman v MacKeigan [1989] 2 SCR 796 ‑ ‑ ‑

FRENCH CJ:   Is it that or MacKeigan v Hickman?

MR MERKEL:   Sorry, MacKeigan v Hickman.

FRENCH CJ:   It is MacKeigan v Hickman, yes.

MR MERKEL:   The relevant passage is at 831 to 832.  I think Chief Justice Gleeson also identified the boundaries that - her Honour in the middle of the second paragraph at page 832 observed in the middle of the column:

As noted earlier, Parliament and the Legislatures have long enacted legislation establishing courts and setting general guidelines as to how they function.

And her Honour says this is outside the protection of immunity from scrutiny.  A judge’s bench book may, on one view depending on the content, be regarded as disclosing aspects of the judge’s decision‑making and, therefore, be it relating to a non‑administrative matter.  But if the bench book dealt with mundane matters of how you approach the judge or the judge’s associate and if it was unrelated to the judgment writing or how the process worked in any particular matter, then parts of it may well be purely administrative. 

So you ring up a judge’s associate or the proper way of communicating must have you contact the other party.  So there may be, what I will call, the mundane matters which are purely administrative and they may cross the line into matters that are properly so closely to the adjudicative function that they are non‑administrative.

So we say that the Act recognises this by its two‑step process of treating a document as covering part of the document.  So part of the document may be administrative and part non as with the, we say, possibility of being the case with the manuals.  But if we look at another category that is review processes for maladministration, we say ‑ ‑ ‑

GAGELER J:   Mr Merkel, why I particularly asked that question is that it seems to be critical to your formulation that you have documents that relate to the decision‑making process in a particular matter or context.  Now, if one assumes that a bench book will deal generically with categories of cases rather than with the decision to be made in a particular matter before the court in a particular case, it seems that you are giving your own language, particular matter or context a very wide connotation if you want to include a bench book.

MR MERKEL:   Your Honour, we do not shy away from the problem that a few mutually exclusive zones must be the end result but on the boundaries there will be grey areas.  But, in the same way members of the Court have put to me today that the procedural manual that we are seeking might set out the criteria which may disclose indirectly the way in which a particular decision process would work in a particular kind of case or a particular nomination, it may be seen to be so integrally related to the decision‑making process that it exposes indirectly aspects of that process.  We have in mind how Justice Gaudron approached one of the interrogatories in Herijanto (No 2).  It did not actually ask about the decision‑making process but indirectly the answer to it may have revealed the step in the decision‑making process in a particular case or in other cases.

So we do not try and confine it, but what we are trying to distinguish between is something that is unrelated to the decision‑making process in any case.  We say that prima facie would be administrative and not disclose anything confidential.  A judgment writing manual which is employed in cases and gives guidance to the judge how to go about judgment writing in particular categories of cases may cross the line into non‑administrative.  But, we say, it is an assessment to be made by reference to the overarching principle of what do these words mean and how is this boundary to be drawn. 

At the moment, the Full Court’s decision that anything that relates to a substantive function is not administrative, virtually eliminates any meaningful operation to sections 5, 6 and 6A because the sole function of the registry of the tribunal, or courts, and the sole function of the Official Secretary is to support and assist in the exercise and discharge of substantial functions. So, we say, it narrows down the operation of the Act which would be permissible if it was required by the public interest sought to be protected, but nothing our learned friends have taken us to would suggest any court has gone that far in its protection of that public interest.

We accept Fingleton and MacKeigan as saying we do not draw a line between adjudicative and administrative because administrative functions can involve decisions which are closely connected to the immunity sought to be given effect to under the umbrella of independence, which is precisely the basis of Chief Justice Gleeson’s discussion in Fingleton and the discussion of Chief Justice McLachlin in MacKeigan.  But our learned friend goes much further than that, and we say some public interest has to be identified.  I think I am right in saying the first time confidentiality was raised was on the special leave application.

GAGELER J:   The other category of documents I asked you about concerned a tender that is let by a court for refurbishment of a court building, how does your formulation deal with that category of documents?

MR MERKEL:   A little bit from left field, your Honour, because I had turned my mind much more to what I might call the administrative tasks in supporting substantive functions rather than functions such as that.  Put it another way, if there were a tender manual as to the procedures to be followed so it assisted the court in how to make a decision about tenders, the manual would be administrative, but the actual tender documents themselves on their face would not appear to be administrative.

GAGELER J:   Well, section 17 of the High Court Act provides in subsection (1) that:

The High Court shall administer its own affairs –

and goes on in subsection (2) to say that the Court can “enter into contracts . . . control and manage any land”, et cetera.  One could say that one of the substantive functions of the Court is to administer its own affairs.  I was wondering how your formulation copes with that reality.

MR MERKEL: Your Honour, I take it in two steps. Is it a document of an administrative nature? I gave the example of the tender manual, we would say that would be clearly covered. If it is just merely a tender in a particular situation, it may not be a document relating to an administrative matter, it relates to a commercial contract. But if it were, then it would fall within the protections of Part IV which would specifically deal with that and, for example, section 47, which provides for confidentiality or non‑exemptions in respect of commercial information.

CRENNAN J:   But could you not look at it from the point of view that the documents relate to the costs of running the court or administering the court?  So, in a sense, turning one’s mind back to what the Full Court said, which you have said is incorrect, they did mention documents relating to the costs of running the office or statistics about activities undertaken by the office would all be documents of an administrative nature.

MR MERKEL: I have no problem with that, your Honour. I suppose our concern is more with respect to documents relating to the substantive functions of deciding cases, arbitrating, the Governor-General exercising her powers. It may be that the real answer is that there is no definition of these difficult words that will cover every situation. But if it were formulated as a cost of administering the court, then it would appear to be within section 5, particularly given what your Honour said, section 17 uses the word “administering” and therefore it is not a very long step to take to say it is administering its affairs by letting out a contract for a new building. It may be that is one of the things that Parliament had in mind when it referred in the speeches to costs and efficiencies and whether the tender, for example, if there were five tenders and the court took the highest and ignored the other four, a question of efficiency might come up.

CRENNAN J:   Certainly the Full Court in paragraph 21, which is 214 of the appeal book echoes what Senator Evans said in the parliamentary debate.

MR MERKEL:   Yes, we have no difficulty with that, but our learned friends use those examples as exhaustive of the category rather than as examples that would fall within the category.  That is where we quarrel with them because, in effect, it was a response to Senator Durack saying, well, these boundaries are very obscure and will lead to problems of the kind we are actually having today, and we had in mind these sorts of efficiencies.  But more importantly, what Senator Evans said the public have a right to know how the courts are being managed.  Are they being managed effectively? 

Now, effectively cannot be are they buying too many staples or too many biros.  It must mean are they managed effectively in relation to the function of assisting the judges to perform their judicial functions, and we say that is really where the line is drawn between us and our learned friends.  They have given a narrow operation, they add solely to read “relate” down and then they say “relate”, then they use the expansive meaning of “relate” but it must not relate to a substantive function.  We say that we cannot find any public interest that would ‑ ‑ ‑

CRENNAN J:   The real debate seems to be focused on procedural documents which are generic.  Is that not the cutting edge of the differences between you?

MR MERKEL:   I think so, your Honour.  We use the procedural manuals and a review process for maladministration, even if there were no such process, but it has not been said that does not exist.  So we would say they would be classically, on their face, documents of the kind that a person is entitled to apply for.  Can I just go back to a matter, your Honour the Chief Justice put at the outset about the nature of a request? 

Section 11A(1) allows for a person to request a document and the request must meet the requirements of section 15 and section 24 allows a request to be refused if it would divert resources inappropriately.  But we would say that that statutory scheme does not suggest an onus is imposed on a person making a request to have to make the terms of the request fall within a particular section.  Section 15(1) and 15(2) would ‑ ‑ ‑

BELL J:   But why is that?  This is concerned with the legally enforceable right to obtain access to documents.  We are concerned with the construction of the provision of 6A which provides that the Act does not apply save in the particular circumstances.  Some of your submissions that highlight the elaborate provisions made under this Act to protect confidentiality and the public interest inherent in that in documents to which otherwise a person has a legally enforceable right may not be particularly useful when dealing with the exclusion from the Act in 6A.

MR MERKEL:   Your Honour, can I say something about the exclusion but can I first just go to section 15 because this does set out the requirements of the notice.  It does not seek to impose a burden of the kind raised by his Honour the Chief Justice because under 15(1):

a person who wishes to obtain access to a document . . . may request access –

and the only requirements of the request are set out in 2, and it says:

provide such information . . . as is reasonably necessary to enable a responsible officer . . . to identify it –

That does not impose an obligation ‑ ‑ ‑

FRENCH CJ:   But that section is disapplied by section 6A(1) unless you fall into the exception.  Section 15, surely, is disapplied.

MR MERKEL:   We would say there are problems with that, your Honour.  Firstly, the Official Secretary is an agency because he is a prescribed authority.  So, on its face, the section applies ‑ ‑ ‑

FRENCH CJ:   Section 15 can only apply, can it not, to a request for a document - where the request is directed to the Official Secretary to the Governor‑General section 15 can only apply to a request for a document relating to a matter of an administrative nature.

MR MERKEL:   Yes, that is correct, your Honour, as do a number of other statutory provisions for many other organisations.  Can I just say that a lot has been made of a so‑called immunity but if your Honour goes to the ‑ ‑ ‑

FRENCH CJ:   The word “immunity” may be a bit misleading in this context.  What we are talking about is a provision that simply says the Act does not apply.

MR MERKEL:   Can I take your Honour – that is correct, but a similar provision can be seen in Schedule 2, Part II, agencies exempt in respect of particular documents.  We say that “exempt” means the Act does not apply and we say that there is a range of agencies and categories of documents which are exempt but that does not give section 6A or Part II of Schedule 2 any standing or status that would treat section 15 as being required to operate in any different or special way for agencies that are exempt in respect of some documents. 

We say all that 6A does is it can be described as setting out the documents in relation to which the Act applies and the documents in relation to which the Act does not apply. We say too much is being made of the fact that the word “unless” is used because that inoperative effect has no different operation to that schedule I took you to which comes from section 7(2) which says:

The persons, bodies and Departments specified in Part II of Schedule 2 are exempt from the operation of this Act in relation to the documents referred to in that Schedule in relation to them -

which is in substantive operation no different to sections 5, 6 and 6A.

BELL J: Why would you not consider that there is an object to the provisions respecting courts, tribunals and the Official Secretary in sections 5, 6 and 6A that is to be distinguished from the treatment of agencies and prescribed authorities respecting certain classes of documents that are exempt? Why would one not read it that way?

MR MERKEL:   Well, your Honour, I read it that way because of the words “the criterion applied” which is different to the criterion applied in these scheduled bodies, but that does not change the structure of the Act and how it operates, it merely requires a focus on what do the words in question here mean.  What is this criterion and how is it to operate?  That is the only question.  We say it is the answer to that question that takes us to why the exclusion from the Act of non‑administrative matters is there, and that is the entire focus of our submission. 

It is in that context, if we might, that we would wish to take your Honours to the Act and the structure of the Act because we say it is supportive of the approach that we have taken. Can I take your Honours quickly through it? Section 4 in the interpretation defines a “document” as any part which gives the maximum freedom to exclude a non‑administrative matter from a document that may have administrative matters. The definition of “document of an agency” is a document in the possession of the agency.

Can I just ask your Honours to note, it is a tangential question, but it may be relevant, that the Full Court treated, at paragraph 28, a document in the possession of an agency as not applying to the Official Secretary so that if a request was made for a document of the Official Secretary in another department that was a request for a document of the Official Secretary.  Their Honours just stated a conclusion there, but we say that it is very difficult for the Act to work in that way.  It gives an added protection if that construction were correct, so that if someone sought a document of the Official Secretary and the Attorney‑General’s Department section 6A would apply.  We say that will give a strained meaning to the whole structure of this Act because the Official Secretary is an agency and this definition is a possessional definition intended to fall within the framework of the Act.

Exempt documents are defined and conditionally exempt documents are defined, but importantly we go to “prescribed authority” and we have the broadest of definition in subparagraph (a), (b), but (c) is the critical one which brings the Official Secretary in and judges of courts which would be established under an enactment, so judges other than the High Court would fall within (c), a:

person holding, or performing the duties of, an office established by an enactment –

So that would also cover the Official Secretary.  Then we go to the scheme in 5 and 6 and we have tried to make a point that this Act gives guidance in the headings which are relevant to resolving part of our difficulty.  The way in which the headings read in 5 and 6 are the “Act to apply to courts in respect of administrative matters”.

It is interesting when one goes to Schedule 1 on the prescribed tribunals they are exempt in respect of non‑administrative matters.  We say this is made clear in the debate in Parliament that this Act was concerned with documents that relate to administrative and non‑administrative functions; non‑administrative functions are outside the Act, administrative functions are in the Act and fall comfortably within the words “relate to”. 

The structure of 5 is to make a court a prescribed authority. Holders of a judicial office are not to be a prescribed authority and not included in a department. Can I make one point very clear? It is very important to our submission. This Act imposes the obligation to give access under section 11 and the obligation to publish under section 7A. So to say someone is exempt from the Act is to say no more than they are not subject to those obligations. Then importantly in (c):

a registry or other office of a court . . . and the staff . . . when acting in a capacity as members of that staff . . . a part of the court –

and then the key words are –

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.

So we would say that the AAT was correct in the question of law being is the request capable of covering documents relating to matters of an administrative nature.  It is only if it was not capable of covering it that the answer could be given, no, it is not and therefore we do not need to look at the documents.  Then the same scheme applies to administrative tribunals specified in Schedule 1, and I do not think there is any relevant distinction. 

Then we get added in 1984 – and I will come to this context, but without any real explanation, but as part of the scheme by which the Official Secretary was established under the Governor‑General Act and given tasks under that Act as an ancillary provision, section 6A was enacted and it is in identical form, relevantly, in its effect anyway if not in its precise wording, to the scheme created for courts and tribunals under 5 and 6.  I would ask your Honours to note the words “document of the Official Secretary”.  We say that the structure of that would not suggest it is meant to be any different to a document of an agency.  That is fairly clear under subsection (2):

a document in the possession of a person employed under section 13 of the Governor‑General Act 1974 that is in his or her possession –

that came into effect in the same statutory scheme in 1984 –

by reason of his or her employment . . . shall be taken to be in the possession of the Official Secretary –

So there is nothing in that structure that suggests that the possessory element of the definition is not to apply.

Then, can we go to exemptions – and this is an important point we make in our reply submission – when we go to exemptions we look at section 7(2) which I have taken your Honours to which operates in much the same way as sections 5, 6 and 6A for a raft of bodies in Part II of Schedule 2 but, importantly, it is (2A) that tells us when secrecy is really intended to be protected – that is 7(2A):

An agency –

that is any agency, not the one who has possession of the document –

is exempt from the operation of this Act in relation to the following documents –

and the way in which the exemption is granted is –

a document (an intelligence agency document) that has originated with, or has been received from, any of the following –

So, that is how the statutory scheme gives special protection for a special public interest which can be readily identified as secrecy.  But, importantly, (b) makes sure that one cannot fall between two stools or in the crack here because it also exempts:

a document that contains a summary of, or an extract or information from, an intelligence agency document, to the extent that –

So those sections tell us how secrecy is to operate.  We have similar provisions for a Minister and then you have (2C) – the same scheme for:

(a defence intelligence document) –

That is what we would say would be fairly described as immunity from the operation of the Act.  We say the publication scheme is important, particularly with the mandatory publication in section 8.  So this is no longer just what you must give access to but what you must tell the public about.  We have got (2C) – the functions of the agency, including its decision‑making powers affecting members of the public.  Now, can I just say this?  Fortuitously, the functions of the Official Secretary in respect to the honours system, may not amount to a decision‑making power.  It may do no more than pass material up.  But if it makes recommendations, then that puts it into operational information.  We assume it does not, but we do not really know whether it is just passing on information without comment or making recommendations because if they do make recommendations within the honours system, then they fall in section 8A – it is operational information.

But we would say the court manual for the docket system would be a matter that would affect members of the public because it tells them how their cases are allocated and to whom.  Then we have got operational information must be published and we go to section 8A and we find that it:

is information held by the agency to assist the agency to perform or exercise the agency’s functions or powers in making decisions or recommendations affecting members of the public –

Now, in this case it may or may not be that the documents that fall in file notes contain recommendations but, more importantly, it may be that the procedural manual does request a recommendation, but even if it does not in the honours system, looking at the construction of the Act, it is quite open to the Official Secretary in respect of certain functions for the Governor‑General to make recommendations and, if that is the case, then section 8A requires publication of operational information and the very example given is:

The agency’s rules, guidelines, practices and precedents relating to those decisions and recommendations ‑

which we would say comfortably falls within the ‑ ‑ ‑

FRENCH CJ:   We are not talking about the publication obligation here, we are talking about the application of the Act for a request for access to a document.

MR MERKEL: We are, your Honour, but looking at the context ‑ looking at the word relating to administrative matters and the meaning it is to be given, we are looking at contextual indicators in the Act, and if the Act requires publication of a document that falls within the category for which secrecy is contended for it is an indicator that it is not really intended to fall outside administrative matters under a secrecy veil. It is a strange result that would have them – agencies required to publish manuals of the kind we are looking at or review processes for maladministration and yet find that without something like in section 7(2A) the Official Secretary does not have to publish – does not have to give access to a manual. It is just the same public policy objective underlies section 8 publication as section 6A disclosure.

FRENCH CJ:   All of this is designed to persuade the Court that an expansive construction of the term “relates to matters of an administrative nature” and within that “matters of an administrative nature” is to be preferred, that being the construction which you set out, I think, in paragraph 3 of your reply.

MR MERKEL: Yes, your Honour, although we would not, with respect, call our construction expansive; we would say that it strongly points against the very narrow and strained construction which adds the word solely in which is essential to the submission of my learned friend the Solicitor. It is just that we are content with saying that relating to is a term of width and it should be read down to the extent necessary to give effect to the public interest we can identify is served by sections 5, 6 and 6A but not with my learned friend’s overreach; that is how we put it. If it is called expansive, then we accept that, but we would say it is a natural reading of the words as against our learned friend’s reading, which is an unnatural reading by having to restrict it in the way he has done.

The other provisions – I have taken your Honour ‑ section 11 your Honours are familiar with, it is the right of access.  Section 15 I have taken your Honours to is the request.  Relevantly, to this question of possession, section 16 enables a transfer where a document “is not in the possession” of an agency because “the subject‑matter . . . is more closely connected with the functions of another agency”.  For example, if the Official Secretary’s document was in the hands of another agency it may be that the request should be dealt with by the Official Secretary which supports a possessory type of approach to the words “a document of”.

Section 22 enables editing and I would just ask your Honours to note Justice Gray in Bienstein discussed the significance of that at paragraph 71, so that is the second vehicle by which documents can be cut down to serve a public interest.  So to the extent it contains exempt matter under Part IV that is eliminated from the document under section 22. 

Then we come to the scheme under Part IV and it is an important part of our submission in response to our learned friend’s confidentiality and immunity submission that Division 2 of Part IV deals specifically with these very issues where it wishes to give secrecy and total exemption and they are all unrelated to any particular function of the Governor‑General:  cabinet documents, section 34; national security, section 33; law enforcement, section 37; secrecy is dealt with expressly in section 38 which deals with Schedule 3. 

So Schedule 3 sets out the enactments where secrecy provisions apply.  So if there is to be secrecy, Schedule 3 provides for those enactments to be specially enacted and identifies giving rise to secrecy and there is nothing concerning the Governor‑General there.  Legal professional privilege, another confidentiality heading is exempt ‑ ‑ ‑

FRENCH CJ:   These are all exemptions relating to particular categories of documents.  We are concerned with the non‑application of the Act in relation to a particular agency, are we not?

MR MERKEL:   That is so, your Honour, but the reason we take your Honours to this is that it is part of our submission that the public interest that our learned friends are seeking to safeguard have been specifically addressed and safeguarded in Part IV with total exemption and the Governor‑General would be entitled to exemption under these provisions.  We say there needs to be some overriding public interest, more than that seen in Part IV, to give the Governor‑General additional protection.

GAGELER J: Are you going to come to section 47C?

MR MERKEL: Yes, your Honour. Section 47C takes us into a conditional exemption for deliberative processes. So we have now got away from Division 2 and into – sorry, Division 1 into Division 3 where the public interest can override any of these special protections and documents conditionally exempt – sorry, I should take your Honours to 45 because 47C is picked up in 45. Section 45 gives an exemption of material to persons who would have an action for breach of confidence but it does not apply to section 47C deliberative information:

unless the disclosure of the document would constitute a breach of confidence owed to a person or body other than –

the agency.  What the scheme is, as we understand it, in 45 and 47C is that if disclosure would result in a breach of confidence action by a person outside the government hierarchy, then it would be exempt under 45 and you would not get to 47C.  But if the person claiming to have the benefit of the breach is an agency, then 47C only gives conditional exemption if it would disclose deliberative matter but it exempts deliberative matter that is operational information.  So it, in effect, stops an agency creating an obligation of confidence.

GAGELER J:   Well, to understand 47C you have got to go back to section 31B and there you see that:

A document is exempt for the purposes of this Part if:

. . . 

(b)      it is conditionally exempt under Division 3 –

One of the conditional exemptions is section 47C -

and access to the document would, on balance, be contrary to the public interest –

Now, section 47C is the new incarnation of a provision that has been in the Act from the beginning that accommodates documents that are concerned with deliberative processes in circumstances where their release would on balance be contrary to the public interest. My difficulty with section 47C is how it applies, if at all, to the deliberative processes of the Governor‑General. I just do not see how it works. Perhaps some deliberative processes in which the Governor‑General is involved can be said to be deliberative processes involved in the functions of the Government of the Commonwealth, but perhaps not all.

MR MERKEL:   Well, sorry, the Governor‑General is not an agency, so that may, if I have understood it, answer your Honour’s question.

GAGELER J:   Well, the Governor‑General is not an agency or a minister, nor is the Governor‑General per se the government of the Commonwealth, so I am just wondering whether that general and important provision that exempts documents which are concerned with the deliberative processes and where their disclosure would be contrary to the public interest can ever apply to a decision‑making process of the kind with which are concerned in the present case.

MR MERKEL: It may not other than in respect of the function of the Official Secretary because the Official Secretary is an agency and therefore is subject to 47C if the document relates to matters of an administrative nature. Section 47C would give a conditional exemption for a deliberative process, and looking outside the honour system one can think of many examples where the Official Secretary would give an opinion, advice or recommendation, but what is excluded from even that conditional exemption is operational information, which takes us back to our procedural manuals review process point. But our real point is that this is a very carefully calibrated and elaborate scheme that would appear to serve, as Parliament would wish to have it, the public interest in respect of the disclosure of documents that fall under the umbrella of confidentiality.

GAGELER J:   What I am suggesting to you is that this carefully calibrated scheme does not seem to accommodate, by way of an appropriate exemption, documents concerned with the actual exercise by the Governor‑General of a substantive function.

MR MERKEL:   Your Honour, that is correct and that is why I said earlier that our learned friend’s construction of elevating the Official Secretary to have this protection would give the Official Secretary greater protection under this Act on our learned friend’s view than the Governor‑General has.  The Governor‑General may not be subject to the Act, but she is given no special privileges concerning her information and her documents in the possession of agencies unless Part IV applies.  If one of her documents was subject to the Act, then 47C may well be the conditional exemption upon which she would have to rely if it was not a confidential information case.

So the problem underlying our learned friend’s case is that he is trying to conflate the Official Secretary with the Governor‑General but that is not really what the Act does and that is why I spent some time with your Honours on section (2)(a) which is the special protection in Part IV.

BELL J:   Accepting that documents in the possession of the Official Secretary would be subject to 47C and the public interest that you identify as being protected in 47C and the other provisions to which you have directed our attention, what is your submission respecting the legislative object to be discerned in 6A?  If the deliberative decision‑making processes are protected and confidentiality is protected under 47C, what ‑ ‑ ‑

MR MERKEL:   Your Honour, we accept what has been put to us earlier by different members of the Court that the Governor‑General’s functions are different, as is the arbitral Tribunal’s functions or the Tribunal’s functions.  But what we say is compelling – and I will take your Honours to it now – is the legislative history would have difficulty in identifying any public interest relating to the Official Secretary that is sought to be protected that is any different to that which is sought to be protected for the tribunals and courts which is independence and impartiality, not in respect of just decisions, but in the discharge of the functions and exercise of the powers the particular body has.

CRENNAN J: But in trying to work out how section 6A and section 47C operate together, are you positing documents which are of an administrative nature so they fall in 6A, but which may then be subject to an exemption under 47C?

MR MERKEL:   Yes, your Honour.

CRENNAN J:   That is how they work together?

MR MERKEL:   That is how they work together and very comfortably to protect any public interest our learned friends identify because the Parliament has addressed these very questions.

GAGELER J: But what about the public interest in the decision‑making – the confidential decision‑making – of the Governor‑General? You do not get into section 47C. You do not get to weighing the public interest.

CRENNAN J:   Because it is only if you pass the gateway of section 6A.

MR MERKEL:   Correct.  You have to get an administrative matter to get to 47C.  But, if I understand what your Honour is putting to me, the secrecy of the Governor‑General is not protected under this legislative scheme in the way ASIO and defence information is protection.

GAGELER J: No. I am looking at 47C, itself. What I am saying is the deliberative processes of the Governor‑General are not protected by section 47C.

MR MERKEL:   Correct.

GAGELER J:   So, on your submission, you get through the gateway of section 6A and that gives access, or a right to obtain documents relating to the deliberative processes of the Governor‑General, but this exemption which applies with section 31B where, on balance, disclosure would be contrary to the public interest, has no application – or can have no application.

MR MERKEL:   To the Governor‑General - it may have an application to the Official Secretary.

GAGELER J:   To the documents that are held by the Official Secretary that relate to the deliberative process of the Governor‑General.

MR MERKEL:   Well, if your Honour could change the word “relate” to “disclose” we would say you could not get through the section 6A gateway.  That is why we say we need to shy away from the words “relate to” in the exclusion in the way our learned friends would have it because they then give an expansive operation to the exclusion which leaves no work to be done by “relate to administrative matters”, but we say that the gateway would not be open to that.

CRENNAN J:   Do you not say the working manuals that generically deal with the deliberative processes would get through the gateway?

MR MERKEL:   Yes, they would get through the gateway and if they exposed anything in the nature of 47C information they would get a conditional exemption unless they were operational information.  So we say that the bottom line with all this is that these protections work amply to give effect to all public interest aspects of documents that fall under the umbrella of the Act and are not exempt, so you have the conditional exemption process particularly in this area, and I think, your Honour, that going back to the Court’s tenders, I think there is conditional business exemptions such as 47G, so there are sections that would deal with commercial information and deal with that in a particular way. 

So, I have taken your Honours to the schedules which support our non‑administrative/administrative matters dichotomy.  Can I next take your Honours to the legislative history which does not support our learned friend’s narrow approach?

FRENCH CJ:   Now, at this stage we are moving onto paragraph 12 of your outline, are we?

MR MERKEL:   Yes, your Honour.  Justice Gray considered this in some detail in Bienstein, but the starting point was that the initial draft of the Act excluded courts and tribunals, the subject of sections 5 and 6 from the operation of the Act. Can I start with just taking your Honour quickly to the report of the Senate Standing Committee, the 1979 report, at paragraphs 12.29 through to 12.34? This was the source of the debate we will come to. The committee report under 12.29 dealt with the exclusion of the courts, and I just only want to focus on the courts and certain industrial bodies. After the draft of the clause, reservations were expressed about the total exclusion and then there comes this public interest which we say keeps re‑emerging:

There is obviously very good reason for governments not imposing requirements which would interfere with the independence of the judiciary and the proper administration of justice.

Then they say, well, it would not be appropriate for access to that information, but then it goes on in the middle of the paragraph:

However, there are other documents of a more clearly administrative character associated with the functioning of registries and collection of statistics on a host of matters associated with judicial administration which, equally clearly, should be opened up to public gaze.

Then the last sentence of that paragraph:

The very existence within the Commonwealth Attorney‑General’s Department of a Division of Judicial Administration is testimony to the ability to distinguish between the judicial and administrative aspects of the operation of the courts.  We therefore propose that the exemption . . . should be limited to the non‑administer functions of the courts.

Now again, one sees this idea of matters non‑administrative functions which are the exercise of power or discharge of functions in a particular matter.  So the recommendation was the amendment to limit the exemption to documents of a non‑administrative character.  The same process was followed in 12.33 with the industrial bodies who were then, I think all of them were 51(xxxv) bodies, possibly with the exception of the Public Service Arbitrator and then as with the courts, there is – we recognise the conciliatory bodies make it imperative that there be full and frank discussion.  Then the last sentence, this is before 12.34:

As with the courts, we see no reason why the administrative functions of these conciliatory bodies should be exempt.

Recommendation saying the exemption in respect of non‑administrative functions only.  Then can we go to the Senate debate which is at pages 1767 through to 1770 where the amendments that we now see in 5 and 6 were moved by Senator Evans and then he says halfway down the first column at 1768:

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. 

Then he refers to the report and then says a few lines on:

In those paragraphs the point was made that 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 . . . 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.

Then, over the next column, halfway down in the second paragraph, after talking about administrative efficiency, the Senator said:

The Senate Committee does not see this as interfering or trespassing in any way with the independence of these bodies which, as part of our constitutional system, it is important to preserve.

Then, Senator Missen, about three‑quarters of the way down his first paragraph, says:

I do not believe that that is correct in regard to administrative activities of courts which, in that respect, are very much like any other government body.

Senator Durack in the first column at 1769 with great prescience said:

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 –

Senator Evans back at the bottom of 1769 says, last five lines:

it was important to maintain, absolutely unsullied and unfettered, the principle of judicial independence so far as judicial powers, properly so‑called, were concerned.

So, we have got administrative powers, properly so‑called, and judicial powers, properly so‑called, but when it comes to administration of any of the courts in the federal system and more so with the arbitration tribunals over the page:

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 –

CRENNAN J:   Emphasis seems to be on cost effectiveness, so the idea of administrative procedure seems to be fairly closely related to cost efficiency or efficient administration.  It just seems to be a different concept from your construction of administrative tasks in paragraph 3 of your reply.

MR MERKEL:   With respect to your Honour, your Honour has picked out one of three criteria or matters referred to by the senator which, if it were all that was intended, the relation to administrative matters would have been expressed in a different way.  The context of this is we are looking at exemption for non‑administrative functions.

CRENNAN J:   All in the context of it is difficult to isolate easily a distinction between administrative matters and non‑administrative matters.  The answer to the point that it is very hard to clearly articulate a distinction is that the intended emphasis when there is a reference to administrative matters is on administrative efficiency and cost efficiency.

MR MERKEL:   We accept that that is certainly within the umbrella, but the umbrella drawn is how they were being administered which is assisted by the emphasis on the distinction between administrative and non‑administrative functions and in respect of administrative and non‑administrative matters, which I took your Honours to in the Senate Committee report and earlier in the speech, so that if the intention was to confine it to what might be called costs in the staples and pens type of exposure, then these are an inappropriate way of describing them because we are talking about officers whose sole administrative function is to support – their substantive function is the exercise of power, so to confine it in that way, we say it is certainly covered, but to limit that would be to more construe – not even properly construe the debate because the debate is expressed in far wider terms than that.

CRENNAN J:   In any event, we have said many times it is the text we have to look at.

MR MERKEL:   That is so, your Honour, but I suppose I guess what I am trying to say is this tells us the mischief to which the exclusion was directed and that was to not sully or undermine or impinge upon judicial independence, but we say how the courts were managed and how effectively comfortably accommodates our definition – can I go in that context to Herijanto because we say that there is a very helpful analysis by her Honour Justice Gaudron there as to precisely what would be understood by not impinging upon judicial independence.

Can I go to Herijanto (No 1) 170 ALR 379, which is on our list of authorities, and can I just remind your Honours that this related to a claim that the RRT had not had regard to documents it was required to have regard to under the Act, and to establish the claim the plaintiffs administered interrogatories to individual members of the Tribunal to try and ascertain what they did or did not have regard to, and the Act gave a member of the RRT the same protection or immunity as a judge of the High Court.

Her Honour’s discussion of the relevant principles starts at paragraph [13] at 382 where Her Honour identifies the unity as:

cannot be compelled to answer as to the manner in which they have exercised their judicial powers.

I want to briefly take your Honours to Hennessy separately.  Her Honour then refers to MacKeigan which I want to take you to separately, but then in [15], Her Honour says:

In MacKeigan, the immunity of judges from compulsory disclosure was rested on the principle of judicial independence.  In Sirros v Moore, a case concerned with immunity from civil suit, Lord Denning MR suggested that the reason underlying that immunity was to ensure that judges “may be free in thought and independent in judgment”.  That, in my view, is also true basis of the immunity from compulsory disclosure.  And on that basis, I see no reason why a judge might not be compelled to disclose the record upon which he or she has acted.

Now, can I just say, that comes up again in Hennessy but again that is not comfortably accommodating the secrecy interest because that would not be something secrecy would permit - what was the material ASIO acted upon and so forth.  However, that is subject to the qualification, the disclosure cannot be compelled if it would also reveal some aspect of the decision‑making process as may have been the case in MacKeigan.  There is no difficulty in saying that in an appropriate case judges may be compelled to disclose the record on which they have acted, in the context of judicial process the record bears a clear meaning. 

The same is not necessarily true in the context of administrative decision.  Thus, it is preferable to identify what is within the immunity rather than what is outside it.  In my view, the immunity is immunity from disclosing any aspect of the decision‑making process.  That is what is required to ensure freedom of thought and independence and that approach is entirely consistent with what was said in Hennessy.  Now, as is made clear in (No 2), but also in Her Honour’s decision at paragraph [23], the decision‑making process means by the particular tribunal or judge, not process at large, and at paragraph [23] Her Honour says:

I can see no basis on which an answer to interrogatory 7(a) would reveal any aspect of a member’s decision‑making process.  However, the same is not true of interrogatory 7(b), (c), (d) or (e).  Although the information sought does not go to any decision in issue in these proceedings, it seeks information which necessarily bears on other decisions.  The protection and immunity which is conferred on members of the tribunal by the Act extends to all decisions made by them and, thus, interrogatory 7(b), (c), (d) and (e) must be set aside.

Then in Herijanto (No 2) which is reported in ALR 575, the plaintiffs sought to come through the back door by way of discovery and the same problem arose and at paragraph [10], Her Honour makes it clear that what is protected is the tribunal members’ decision‑making process and Her Honour says, and we accept all of this as the public interest identified in sections 5 and 6:

the protection and privilege . . . extends not merely to disclosure by the individual member concerned, but the revelation, by whatever means, of any aspect of his or her decision‑making process.  This seems to be the basis for the decision in Zanatta v McCleary.  In that case the evidence of counsel was not admissible to prove any out of court statement by a judge as to his decision‑making process.  And it may also be the rationale for the decision of the Privy Council in Ramlochan v R -

So we have no difficulty in identifying that as a descriptor of the immunity with which Parliament was concerned and the independence which it was protecting.  Can I briefly take your Honours to Hennessy, which your Honours cited? That is at 38 CLR 342, where Chief JusticeKnox and Justices Gavan, Duffy and Starke made it clear that judges are compellable witnesses. This is at page 349 at point 3:

Judges are competent witnesses, though they may not be compellable to testify as to matters in which they have been judicially engaged; but their evidence has been received upon matters which did not involve the exercise of their judicial discretions and powers –

So, in respect of judges, again, there is no veil of secrecy other than that which is within the immunity Justice Gaudron had identified.  Then their Honours said:

Arbitrators, too, are equally competent as witnesses, though they cannot be compelled to testify as to the reasons which influenced them –

Then further down the page their Honours said, this is about the middle of the last paragraph:

It is impossible in these circumstances, in our opinion, to deny their competency as witnesses; but the extent to which they can give evidence of matters coming before them officially is another matter.

In our opinion the evidence tendered –

which was their observations as to the physical state of health of the individual who was in a matter before them –

is not prohibited or privileged, because it does not seek to invalidate any act of the Board or to explain, contradict or vary any of its certificates or acts or to disclose the manner in which the Board exercised any of its functions, and because it merely seeks the disclosure of existing facts and symptoms and the opinion of expert witnesses who also happened to be members of the Board upon those facts and symptoms.

And at the bottom of page 353 a similar view was expressed by Justice Higgins.

FRENCH CJ: Now, we are dealing here of course not with a judicial body but with an administrative agency, so that the boundaries around judicial power and the adjudicative process which we are concerned with in section 5 and by analogy, I think, in section 6, do not operate in the same way in 6A. Now, your contention I think is that the decision‑making process relevant to the administer of, or the determination of, the grant of honours under the Order of Australia commences, as it were, when the Council meets to make a recommendation to the Governor‑General and looks at the material which is before it?

MR MERKEL:   That is the latest time at which it would be open to say it commences.  We accept there is an argument that may be put against us, but it does not undermine our application that it commences on the creation of the material in respect of the nomination by the ‑ ‑ ‑

FRENCH CJ:   So the gathering of information.

MR MERKEL:   May be the commencement of that process.  There are two possibilities, our case accommodates either.

FRENCH CJ:   Well, let us say that it commences upon the gathering of the information, which includes correspondence and the processing of that correspondence.  Now, how does your category “all correspondence held” and “all file notes” fall outside that decision‑making process?

MR MERKEL:   Because, your Honour, that assumes that the file notes and correspondence relate to matters of substance that are to be put to the Council.

FRENCH CJ:   It is all file notes contained in my nominations of 2007 and 2009.

MR MERKEL:   All we say, your Honours, is that they may contain matters of administrative nature.  You cannot, by reference to the descriptor, be satisfied it does not.  We can readily acknowledge that if the earliest point is the point at which the decision‑making process in respect of the nomination starts, a large number, and possibly all, but a large number of the documents may be relating to what we would say is a non‑administrative matter and that the decision‑maker would be able to answer but by asking the correct question which is what really brings here.  We say, if we are correct, the Tribunal has not asked the correct question because it was all excluded because it related to a substantive function, and we say that the content needs to be looked at.

KIEFEL J:   A number of the documents that would be before the Council on its first consideration at a meeting, at least, may be documents in the nature of references, predictably, to which confidence would attach and that appears to be something which was discussed in the extrinsic material that you referred to.

MR MERKEL:   Yes.

KIEFEL J:   So we are not talking just about documents which are used after the Council meets as part of a deliberative process or a process of recommendation.  We are also talking about documents which might have been received and which are in their nature confidential.

MR MERKEL:   Yes.  That would be classically protected under section 45 but, on the decision‑making process, we accept that some of the documents may be non‑administrative but that has to be determined by addressing the correct question.  Can I just indicate, your Honours, there is a passage in the transcript where the Official Secretary just sends up all nominations, so I think there is a reference to even frivolous nominations.  So it may be assuming too much that the information is necessarily part of the decision‑making – sorry, the material is necessarily part of the decision‑making process.

KIEFEL J:   Well, what other purpose would information be gathered for – nominations received?

MR MERKEL:   No.  If the descriptor were documents forwarded to the Council for its consideration in respect of the nomination, and the process began with the gathering of that information, that would be information of a non‑administrative nature if that were the descriptor.

KIEFEL J:   Including all the correspondence sent and any internal memoranda that gave rise to the receipt of the information.

MR MERKEL:   Well, as I said your Honour, the descriptor would be material sent for the purpose of considering the nomination would be classically a descriptor of non-administration ‑ ‑ ‑

KIEFEL J:   It seems to me we are getting into a large part of the process that is involved as soon as a nomination is received.

FRENCH CJ:   Do you include the letter of nomination, the application form?

MR MERKEL:   Your Honour, that is out of the ring because it was given to the appellant and, therefore, is not an issue.

FRENCH CJ:   So that does not fall into the category “all correspondence held by the Official Secretary in relation to [this] nomination”?

MR MERKEL:   No, no. 

KIEFEL J:   But it has to form part of the process of consideration and deliberation.  It is the very subject matter.

MR MERKEL:   Well, your Honour, that particular item we do not intend ‑ ‑ ‑

FRENCH CJ:   We are looking at the categories and what the category covers; it is not what happened to this particular item.

MR MERKEL:   Correct.

FRENCH CJ:   A third party might wonder whether a certain person had been nominated for an award and would write in under the FOI Act, on your construction of 6A, and be entitled to receive a document of nomination if one existed in relation to that particular person that the third party names.

MR MERKEL:   I am not sure that the nomination form would be a document of an administrative nature, your Honour, because it is not part of the – it is not recording an administrative task performed.

FRENCH CJ:   All right.  Well, what about the notation on the Official Secretary’s file, the file of one of the Official Secretary’s employees, of the fact of that nomination and the instigation of a process of checking referees?

MR MERKEL:   Well, again, that comes back to the question of if the process starts with the receipt of a nomination ‑ ‑ ‑

FRENCH CJ:   Yes.

MR MERKEL:   ‑ ‑ ‑ that is the decision‑making process.  I do not have – I am not trying to go to battle on that issue.  We understand that there are two views open.  If the judicial view were taken of Herijanto, it starts with consideration by the Council, but if the view were that the process began with the receipt of a nomination because of the way this functions, we comfortably accept that that is a countervailing argument and we say both views are open, and if the countervailing argument in the context of the Governor‑General were correct we do not have any problem with that.

We say that the categories of documents we are seeking, but particularly the procedural manual and the review process, do not fall under the heading of part of the decision‑making process in a particular matter or in respect of any nomination.

FRENCH CJ:   Well, let us say somebody is announced – I am just testing, if you like, for the purpose of construction, the consequences of your construction.  Let us suppose that an award is announced as having been conferred upon some prominent citizen and there are people who think that prominent citizen is not worthy of the award for one reason or another, such a person could write in under 6A and ask for all correspondence held by the Official Secretary in relation to that nomination and award.

MR MERKEL:   Well, again, your Honour, if it were administrative – if it was relating to an administrative matter the answer is it does not depend on the identity or the motive but it has to fall under that umbrella because ‑ ‑ ‑

FRENCH CJ:   That might disclose the identity ‑ ‑ ‑

MR MERKEL:   Assume against us, your Honour, the argument that the process begins on receipt of a nomination so that all matters concerned with gathering evidence and material, et cetera, for that nomination was part of the decision‑making process, that would answer most of your Honour’s concerns, but it does not change the nature of the question required to be asked as to what the relevant words mean.

FRENCH CJ:   It tells us something about the difficulty of trying to disentangle, as it were, decision making from administration, especially where we are not dealing with a judicial function.

MR MERKEL:   Well, your Honour, we do not quarrel with that at all.  The criterion itself, as is clear from Chief Justice Gleeson in Fingleton, the drawing of the line between administrative as such and administrative that is part of the adjudicative or so closely an adjunct of adjudicative that it is not properly described as administrative and then what is judicial.  We even know what is the exercise of judicial power is attended by problems, but that is why we have defined our category in respect of the Governor‑General as exercise of her powers and discharge of her functions in a particular matter as protective of the public interest, which is the only public interest we say is discernible here, ensuring her independence and impartiality by not making her subject to scrutiny.

Can I take your Honours to MacKeigan v Hickman which was about the composition of a panel and about whether judges can be compelled to testify to a royal commission?  I wanted to take your Honours to 831 to 2 of Justice McLachlin, but could I just ask your Honour to observe at 826 between letters e and h her Honour talks about the relationship between independence and impartiality, and independence:

is the underlying condition of judicial impartiality in the particular case.

Then at 831 to 2, her Honour under the head of Immunity at 832 talks about this question of the composition of a particular panel:

goes to the administrative or institutional aspect of judicial independence –

Then in the second paragraph:

I do not say that the power in the courts to control their own administration is absolute, if by absolute what is meant is that in no circumstances can the Legislature or Parliament enact laws relating to the functioning of the courts or enquire into the conduct of particular judges.  As noted earlier, Parliament and the Legislatures have long enacted legislation establishing courts and setting general guidelines as to how they function.

Now, could I just stop there?  To the extent that the courts have general guidelines as to how they function and the allocation of cases, that would be section 8A information, required to the published, nor is there any doubt about impeachment.  But at the bottom of that paragraph her Honour says:

But at the same time, it is clear that Parliament and the Legislatures cannot act so as to trammel what Dickson C.J. in Beauregard v. Canada refers to as the authority and function of the courts.  As Le Dain J. puts it in Valente . . . the third essential condition for judicial independence, the collective independence of tribunals, extends to matters directly affecting adjudication –

and that is “court lists”.  Then Justice Cory in a passage cited by Chief Justice Gleeson in Fingleton at 842 quotes from Valente in the top paragraph and says in line 4 quoting from Valente:

The essentials of institutional independence which may be reasonably perceived as sufficient for the purposes of s. 11(d) . . . may be summed up as judicial control over the administrative decisions that bear directly and immediately on the exercise of the judicial function.

We would say that Fingleton picks that up, and if I can take your Honours now briefly to Fingleton [2005] HCA 34. That concerned the construction of section 10(2) which gave the Magistrate a number of administrative powers concerning how business was to be allocated. The issue was at paragraph 12, the factual issue, which was whether the Chief Magistrate had judicial immunity in respect of the power to appoint and remove or suspend, and it was a demand by her made to a Co‑ordinating Magistrate to:

show cause why he should not be removed from that position that constituted the conduct . . . gave rise to the charges –

Chief Justice Gleeson discusses the problem of allocation of judges to hear particular matters at 51 to 53.

FRENCH CJ:   Now, can you give us the page number?

MR MERKEL:   Sorry – 190, your Honours.

FRENCH CJ:   Thank you.

MR MERKEL:   His Honour, at paragraph 51 says:

It is clear that s 30 of the Code is in aid of the independent and impartial administration of justice; the exercise of judicial functions without fear or favour.

I will come to the oath shortly about that:

The purpose of section 21A, which extended the section 30 immunity beyond the exercise by magistrates of judicial functions to the exercise of administrative functions, is also related to the independence of the magistracy.

Then his Honour posed the question about the – the respondent asked at the bottom of 51:

does it have to do with matters of internal court administration –

then his Honour said in second line of paragraph 52:

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. 

Halfway down that paragraph, his Honour says:

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 . . . relevance may depend on the circumstances.

Now, we would say that the criterion we have applied accommodates the distinctions his Honour has drawn between matters of mere administration and matters integral to a judicial function but at the heart of his Honour’s analysis is a decision of the chief magistrate, not in a vacuum, procedural, manuals or general practices, but there is a decision in a particular matter or context. 

CRENNAN J:   Which is not justiciable.

MR MERKEL:   Yes, which is not justiciable.  I will not take your Honours to Bienstein, but can I just say, particularly in Justice Gray’s judgment at 403, paragraph 67, 406 to 407 at paragraphs 78 and 80 to 81 we would, with respect, adopt his Honour’s analysis of the underlying purpose and operation of sections 5 and 6. We would, with respect, say that his Honour has been criticised by our learned friends for, in effect, stating a roving test, but what his Honour did really was to give a criterion which the AAT could operate on the remission to determine what related to a non‑administrative matter as opposed to an administrative matter.

His Honour’s construction that gave rise to that criterion was based upon the independence.  If it related to administration but did not impinge on independence which we would substitute for those words “didn’t impinge upon or reveal or disclose any aspect of the decision‑making process”, it would be FOI‑able.

Now, it was in that context that section 6A was enacted. Section 6A was enacted in the Public Service Reform Act 1984 which established the Official Secretary - it is now section 6 of the Governor‑General Act - and section 13 provided for the employment by the Official Secretary of staff and in section 6(3):

The function of the Office is to assist the Governor‑General.

In that Act - the Public Service Reform Act is to be found under the heading “Consequential Amendments”, section 6A was enacted in its present form.  Now, we would, with respect, contend that the context in which the 1984 Act was amended needs to have regard to the decisions of this Court in Northern Land Council and FAI v Winneke.  That was part of the constitutional framework within which section 6A is to be considered, and can I take your Honours just briefly to those two decisions.

In Northern Land Council 151 CLR 170, the question of the Administrator of the Northern Territory, who, for relevant purposes, was in the same position as the Governor‑General representing the Crown, was challenged for – regulation passed by the Administrator in Council was challenged on the ground of ultra vires. The argument was put that the decision was not justiciable. It was held to be justiciable, but I particularly wanted to take your Honours to page 219 from Justice Mason’s judgment, in which reliance was placed on the Communist Party Case and, in particular, the passage cited in my learned friend’s submissions about counsels of the Crown being in secret.  His Honour refers to that at the bottom of page 218, and at 219 I wanted to refer your Honours to this paragraph:

Generally speaking the discussion in these and other cases proceeds on the footing that the exercise of prerogative power by the Attorney‑General is examinable as such, without assigning any particular ground therefor.  An exception is the statement of Dixon J. in the Communist Party Case “The counsels of the Crown are secret”.  Dixon J. was then dealing a power conferred by statute of a Governor‑General acting on the advice of the Executive Council; he was not dealing with the prerogative.  He was however concerned to identify what he considered to be the reason underlying the general rule so as to justify the conclusion that the exercise of statutory power was not examinable.  As we shall see, the view that the counsels of the Crown are secret is no longer an acceptable basis for excluding acts or decisions of the Crown from judicial review, but for the moment this question may be put to one side.

That case established that decisions of the Governor in Council or Governor‑General in Council are subject to judicial review.  Then one comes to FAI v Winneke which, again, was prior to the 1984 enactment which is 151 CLR 342. Can I just give your Honours the references that we would rely upon? We would rely upon six out of seven members of the Court found that the decision of the Governor in Council not to renew a worker’s compensation insurance business licence was invalid because natural justice was not observed, but Chief Justice Gibbs at 349, Justice Stephen at 355, Justice Mason at 364, 365, and 372 and Justice Wilson, who I will take your Honours to in a moment, at 400‑401. The argument put and rejected by the then Solicitor‑General at 346 – middle of the page – was that:

The Governor in Council is simply an organ for giving formal effect to the decisions of Cabinet.

Then the Solicitor‑General tried to invoke, in effect, Cabinet secrecy rather than secrecy of the Crown as such and said that it is protected from:

A decision of the Governor in Council is a political decision, and protection from the consequences of that decision is to be found in the doctrine of ministerial responsibility –

It was on that basis that he sought to say that this was not just issuable and that was rejected by six out of seven of the judges on the Court.  So that the idea that the Governor‑General is immune from judicial review based upon representing the Crown was not accepted, nor was the idea that the Councils of the Crown was secret as a basis for immunity from judicial review.  That was all rejected as at the amending date in 1984.  Justice Wilson at 401, makes observations at the top of ‑ ‑ ‑

FRENCH CJ:   How does that inform the content of the public interest underlying section 6A?

MR MERKEL:   The foundation, or one of the foundations upon which that is sought to be invoked by our learned friends is Justice Dixon in the Communist Party Case.  We say that was not accepted as the law in Australia in 1984 and, indeed, the same has occurred in England since.  That any decision, and the judicial reviewability of a decision, depends upon the subject matter of the decision, not the decision‑maker.

GAGELER J:   If the decision challenged in FAI had been made by the Governor‑General, then even on your own test the decision‑making documents – if in the hands of the Official Secretary – would relate to the decision‑making process involved in a particular matter or context and, therefore, would not be required to be disclosed.

MR MERKEL:   Correct.

GAGELER J:   So what assistance do you get from this case?

MR MERKEL:   Because it undermines the public interest sought to be contended for by our learned friend that secrecy is the public interest, rather than the means by which a different public interest is protected.  We do not deny that the public interest is independence and impartiality protected by freedom from scrutiny by the public of the processes involved in decision‑making.  The difference between us is that our learned friend puts secrecy of itself as the objective and, therefore, has an ASIO‑type operation to section 6A. 

You read it down to the extent necessary to give effect to public interest of secrecy, even if it goes to his over‑reach because that is the overriding public interest which is a wider protection than is given under section 6 and 5. We say, it seems to be a capricious reading of the sections that 5 and 6 with the public interest of impartiality and independence do not require that. Section 6A with a so‑called different public interest using the same words, does require it. Then, he says, well, they all have a cognate operation so he then reads down 5 and 6 to accommodate his secrecy public interest in 6A. We say that is not a proper process of construing the Act.

Can I indicate that we wish to hand up to your Honours the oath in the letters patent of the Governor‑General in 1984 and recently which show that the oath is the same as the High Court judge’s oath, which is set out in section 11 of the High Court Act?  Just before going there could I just remind your Honours – I will not read Justice Wilson at 401 but his Honour talks about impartiality and the kind of processes which the Governor‑General undertakes and is not an automaton or a rubber stamp, must bring an independent discretion, and the oath of office at paragraph V of each of the letters of patent in V(b) is:

to serve . . . according to law in the particular office and to do right to all manner of people after the laws and usages of the Commonwealth of Australia, without fear or favour, affection or illwill.

Can I just remind your Honours, Chief Justice Gleeson at paragraph 51 of Fingleton had stated “without fear or favour” is an essential element of independence and impartiality.

So we see within that statutory framework no basis for treating the Governor‑General’s status under section 6A and the public interest served as any different to that in sections 5 and 6. That is the central difference between us. We say, therefore, no reason to give the strained meaning that my learned friends give. Could we now apply that criterion to the appellant’s request? I do not need to spend much time on it because I have already addressed it, but can I ask your Honours to note that the Full Court’s findings about the process are at appeal book pages 209 to 211 and they set out the details of that process.

Mr Fraser’s affidavit at paragraph 4, 6, 11 at appeal book 89 and evidence was given as to the manual at transcript pages 67 and 68.  I just observe at pages 67 and 68 in cross‑examination starting at 67 at line 43, Mr Fraser gave evidence about the manual but at the top of page 68, line 1, he says:

There are case studies and advice and tips and information to assist case officers in fulfilling that role efficiently and effectively.

Then he goes on and says at line 6:

There are template letters –

then at line 23 “standard form”.  So we say, going back to appeal book 7 and 8 to the categories of document, we say that 3 and 4, in particular, would fall comfortably within the descriptor that we say is to be attached – or the criterion to be attached to documents relating to matters of an administrative nature and 2(b) and 5 are capable of containing documents that have that character.

I had omitted to mention to your Honour one case which I would ask your Honours to note, a more recent case in England on review of the royal prerogative.  I will just give your Honour references.  It is R v Secretary of State for Foreign and Commonwealth Affairs (2008) QB 365, a decision of the Court of Appeal. Lord Justice Sedley at 397, 398 and 399 discusses review of the prerogative, but at paragraph 46 - and if I can just read your Honours this paragraph at 399 - after considering the changes that had come in England as a result of the Council of Civil Service Unions Case, his Lordship said:

It can be observed without disrespect, particularly since Lord Roskill was careful to express himself tentatively, that a number of his examples –

of the royal prerogative not being justiciable –

could today be regarded as questionable:  the grant of honours for reward, the waging of a war of manifest aggression, or a refusal to dissolve Parliament at all, might well call in question an immunity based purely on subject matter.

So that is a more recent example along the same lines as FAI Insurance that the prerogative is reviewable, depending on the subject matter of the decision.

We say, if I can just conclude by taking your Honours to the Full Court judgment - can I go particularly to paragraphs 20 and 21 at page 214, your Honour - at 20, their Honours say in the last sentence:

The provision is to be construed against that background –

that their Honours referred to, that includes Council of Civil Service Unions –

and by reference to its terms, that is, the FOI Act applies only to requests for access to a document of the Official Secretary where the document relates to matters of an administrative nature –

We do not have any quarrel with that although we say those matters their Honours described will be matters that do not relate to administrative nature.  Then their Honours say:

In our view the relevant distinction . . . between the substantive powers and functions of the Governor‑General, on the one hand, and the apparatus for the exercise of that power of function, matters merely supportive of that power or function, on the other.

Now, can we just stop there.  That would comfortably accommodate procedural manuals and internal review processes as part of the apparatus.  Their Honours give an example of costs, et cetera, which would fall within apparatus and then in 22 we say this is where the error creeps in: 

The terms of the present requests . . . show that the substantive power . . . was the administration of the Order of Australia, in particular nominations for appointment and the consideration of those nominations culminating in the decision to appoint or not appoint a particular person.  The applicant’s requests were for access to documents of the Official Secretary which related to that substantive power or function (including working manuals, policy guidelines and criteria, review processes and file notes concerning nominations), and not to documents relating to matters of an administrative nature.

Their Honours, with respect, departed from the apparatus as opposed to the exercise of powers, and then inverted the test by saying that if it relates to a substantive power it cannot be related to an administrative matter.  We say, with respect, considering the sole function of the office is to assist in relation to the exercise of substantive power, the broad criterion of “related to” in the exclusion left little work to do with “related to” in what is exposed.  In other words, their Honours inverted the process and really said that anything is not administrative if it relates to a substantive power, and the error that we say can be explained is in ‑ ‑ ‑

FRENCH CJ:   It may be that that leaves little scope for the exception in this category of decision‑making, but it does not have that consequence across all the areas of the Governor‑General’s activities, in particular such things as the financing of the office, the way in which money is spent and so forth.

MR MERKEL:   That is right, your Honour, but bearing in mind that unless this Court has a different view from what the parties are putting, the cognate construction must be given to 5 and 6, it has the same – it effectively takes ‑ ‑ ‑

FRENCH CJ:   Well, I am not sure about that.  That is why I mentioned earlier that the judicial administrative dichotomy is one thing, this is although no doubt it is plainly modelled on 5 and 6, it is applying to a rather different situation.

MR MERKEL:   I accept the different functions, your Honour, but when comes to paragraph 24, their Honours saw only a faint analogy with Bienstein.  Then, after referring to Loughnan v Altman at the top of – last sentence of paragraph 26, top of page 216, their Honours said:

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

But their Honours never identified what that distinct and different public interest was which would be a critical step in reading down the width of what is included or reading up the width of what is excluded. We say that properly considered that exercise is the start of the process of construction of the words “relating to” which, essentially, is what this case is all about. Their Honours in 28 made the observation “document of an agency” did not apply to section 6A which I have already addressed your Honours on, and that is that makes a very difficult reading of section 6(2) and the operation of the role of possession under the scheme of the Act.

We say that critical to the analysis in the present case where the – as the parties are agreed, the functions of the Governor‑General are different as are the Tribunal’s conciliatory function.  What is the public interest that section 6A seeks to serve?  We say there is simply nothing in the extrinsic material, nothing in the case law and nothing in the structure of the Act that would say that secrecy is that public interest as such.  We say quite to the contrary.  For those reasons, we would submit that the appeal should be allowed and the matter remitted. 

I am reminded by my learned junior that I did not go to paragraph 9 of our submission which is Mammoet but we say the very question your Honours posed in Mammoet which is how far does the Act go in giving effect to section 3 must necessarily be answered by reference to how far does section 6A go to protect the countervailing public interest which we have sought to identify, our learned friends have sought to identify and, we say, ultimately, that may be the matter on which the case ultimately turns.  If your Honours please.

FRENCH CJ:   Thank you, Mr Merkel.  The Court will now adjourn until 2.15.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

FRENCH CJ:   Yes, Mr Solicitor.

MR GLEESON:   Your Honours, we have provided an outline which indicates that we had proposed to deal, firstly, with the more general questions and then come at the end to the application of section 6A to the particular context of the Order of Australia.  There is one matter, in the light of this morning’s discussion, I would like to deal with before that which is to identify, if we might, what is the error of law which the appellant is now pressing.  It is a little elusive and the case has taken a couple of different forms.  If your Honours would bear with me on that topic, it may assist in the ultimate appeal?

Could I ask your Honours, first, to go to page 183, at the top which is what I will call the first iteration of the Ms Kline’s case? The argument put there was that one can bifurcate the functions of the Governor‑General into, as it were, category (a) – constitutional functions which you find by reading the Constitution and, then, category (b) – other implicitly lesser or non‑core functions which includes the operation of the honours system because it rests on letters patent, not on the Constitution, and that illuminates the distinction between the non‑administrative and the administrative matters in section 6A. That argument, clearly, is no longer pressed. It had the virtue at least the distinction was one that could be applied but it was clearly erroneous.

I go to that because that is what the AAT thought it was dealing with in the following paragraphs, 17, 18 and 24.  That is the argument which it correctly rejected as a matter of law.

That is the first iteration.  The second is that when the appeal on a question of law came to the Full Court at page 190 it was really paragraphs 1 and 2 which were the question of law, which, as framed, really hinged off what the AAT had found, namely, if the documents were generated in connection with the conferral of awards in the Order of Australia would that mean that section 6A applied so as to entitle the Official Secretary to refuse access? 

If your Honours would go in the Full Court’s decision to paragraph 22 on page 215 the last sentence of paragraph 22 indicates perhaps the central submission being made on the appeal, and this is the second iteration, that although the process of administering the Order of Australia might include some steps which were subject to the protection of section 6A, a dividing line could be drawn depending upon whether it came before or after the Council stage of the process.  So this seemed to be a chronological divide and the argument therefore was:  provided I have targeted documents which attack the administration of the system prior to the Council stage they are administrative, if they are after the Council stage they will be non‑administrative.

Now, that form of chronological distinction is not quite what is now put, but it has some flavour with what is now put.  That is the question of law the Full Court was dealing with and they correctly rejected that chronological bifurcation of the process of the administration of the awards.  The argument in the written submissions which is perhaps the third iteration is a variation on this approach.  It continues to accept that some parts of the administration of the Order of Australia are protected by section 6A, but it says other parts are not and it seeks to draw a dividing line in two bases.

The first is a form of chronological dividing line that the administrative stage goes up to the point of the commencement of the decision‑making stage.  Now, Mr Merkel, with respect, was a little elusive this morning as to where he drew the line between the end of the administrative stage and the commencement of the decision‑making stage.  He did not commit himself to the Council being the dividing point, but he suggested there is some such perhaps mysterious point in the process in the administration of the order in which you have crossed from administrative where you must produce the documents to decision‑making where you are free to keep them back.

The second form of division he suggested might be described as conceptual, which is that you cannot get documents about the decision making in the particular case, but you can get the general procedures adopted by the Council, approved by the Governor‑General, which will apply to the particular cases because somehow they are administrative whereas the rest is not.  Our short point is that even as reformulated in the third iteration, neither of those two divisions, chronological or conceptual, matches section 6A. 

Finally, on this introductory point, it came out of questions this morning when Mr Merkel was asked about how he applied his argument to the documents that he appears to contend that if you frame your request in a very, very general way for a very broad category of documents and if that category is possible, possible that it might include a document or a part of a document, he says, which might attract the administrative exception to the general exclusion, then the task of the decision‑maker and the Tribunal is to inspect every document to see ‑ ‑ ‑

CRENNAN J:   I think he said capable of being of an administrative nature.

MR GLEESON:   Yes, capable.  So, if you define a category very broadly, the more broadly the better in a sense, if there is any chance that something within it might have the category of the exception then what happens under the Act - and this submission goes beyond this case, it goes beyond this case - is the decision‑maker and the Tribunal must inspect every document and one by one decide whether that possibility is borne out.

Now, I just want to address that, because that does seem to be an elaboration on the written submissions.  We would submit it is wrong both in terms of how the Act works and it is wrong in terms of a reflection of how the Tribunal addressed this particular case.

FRENCH CJ:   Did the Tribunal really approach its task by reference to this preliminary question?  It is mentioned in the directions from the conference registrar.

MR GLEESON:   Yes, subject to two matters. Yes, subject to two matters, the first being the way in which Mr Brennan of Council then framed the submission, which I think is the one I have identified, that the reason you can dispose of it on categories is, his argument was simply is it in the Constitution or not. That is the division between the functions and so you could look at - in a sense you did not even need to look too far into the categories on that argument. That is the first qualification of the answer but the second is, your Honour, that direction that you are looking at, provided for the parties to put on evidence, on both sides, and the Tribunal then allowed ample cross-examination and through that process, the content of the categories was illuminated beyond the bare description in the request.

That is the critical bit about the way in which the case ran, where one can comfortably conclude that these incredibly broadly framed categories do not attract the exclusion to the exception, whichever view one takes of the question of law.  That evidence that came out in the case, your Honours will have seen in the appeal book.  It has not been addressed much this morning but could I identify the key parts of that evidence that dispose of the broad categories.  The starting point would be the letters patent themselves commencing at page 113, and under clause 3:

The Chancellor is charged with the administration of the Order.

Everything that happens in the administration of the order is ultimately the responsibility of the Governor‑General.  Now, it is for that reason, taking up some questions of your Honours Justice Kiefel and Crennan, to establish a procedures document is a part of the process of administering the order by saying they will be the means by which we consider the quality of particular nominations.  They are as much a part of the process of deciding who gets the honour as is the consideration of each individual case and it all ultimately comes back to the responsibility of the Governor‑General.

So even just looking at clause 3, a notion that one can bifurcate the process into an administrative and a non‑administrative stage does not sit very comfortably.  Your Honours will see from clause 5, the Council is given its express role, and under clause 6, the Secretary of the Order, who by convention is the Official Secretary, has an express function of maintaining:

the records of the Order . . . and shall perform such other functions in respect of the Order as the Governor‑General directs.

All of the documents in the categories as framed relate to the Secretary’s performance of his duty under clause 6(2) and to the extent the Official Secretary, as the evidence disclosed, is in charge of a process where, for example, references are collected, nominations are researched and the qualities of candidates are investigated and recorded in file notes and correspondence is created, the Official Secretary is performing functions as directed by the Governor‑General, doing things which otherwise the Governor‑General would have to do directly.

FRENCH CJ: Is the Secretary of the Order, who happens to be the Official Secretary, carrying out functions under section 6(3) of the Governor‑General Act?

MR GLEESON:   Yes.

FRENCH CJ: How do you get to that? You have got the letters patented at pending this Constitution which sets out the function of a Secretary of the Order who does not have to be the Official Secretary.

MR GLEESON: No, no. You get there if, and to the extent that, the Governor‑General chooses to ask the Official Secretary to be the Secretary of the Order, matter of discretion for the Governor‑General. That has been done as the practice. Your Honour will observe that the office under section 6(3) of the Governor‑General Act consists of the Official Secretary plus the staff under section 6(2).

FRENCH CJ:   Yes.

MR GLEESON:   That is the only section in the Governor‑General Act that tells us what the function of the Office is. It is expressed in, in a sense, the simplest but the most general of terms. When one thinks of the Office and the Official Secretary, the support or assistance that is provided to the Governor‑General, across the entire gamut of the Governor‑General’s functions is what is referred to in section 6(3) whether they be constitutional, statutory, prerogative, ceremonial or community functions.

It may be that section 7 sits together with section 6(3) to allow for the appointment in the particular case. So, even having gone as far only as the letters patent, it is clear that everything the Official Secretary does as Secretary of the Order is done for and on behalf of the Governor‑General to allow the Governor‑General to administer the Order and any notion that one can bifurcate that process into a stage that is protected by section 6A and a stage that is open to public scrutiny under 6A should be rejected.

So that was the first piece of evidence.  The second, which your Honours have seen, is Mr Fraser’s evidence at pages 90 to 91 of what the Office does – paragraphs 12, 13 and 14.  That evidence illuminates what the file notes and the correspondence that Ms Kline seeks would be about.  Then, the third step is the cross‑examination where counsel had the opportunity to attempt to, as it were, deconstruct those paragraphs and see if somewhere within the categories there was something that was properly administrative. 

The key parts in the cross‑examination are three:  firstly at 67, lines 32 to 68, line 21, that fleshes out the process of seeking the referees, of researching the candidates.  Your Honours will see in particular at 67, line 45 there is evidence as to what the manual does:

it actually has a whole lot of information in it about the nature and style of council’s deliberations, how council wish information to be presented, how they wish to deliberate.  It goes to the types of referees to be contacted, the number of referees, the timeframes for that, the way to extract relevant information from referees.  There are case studies and advice –

They go to the heart of delivering to the Council the information it requires to perform its role.  So that is the manual, clearly integrally intertwined with the process of considering the strength of a nomination and any suggestion, even on Mr Merkel’s test, that you can separate out the manual and treat it as of a different character to the deliberations of the Council is rejected by this evidence, and that point is made again on page 68 at lines 18 to 21.

Next at page 75, at lines 36 to 47, there is more information about the manual.  Finally, at page 83, lines 13 to 25 - this is the questioning on the manual, and in effect the question was put that is hinted at by Mr Merkel today, well, why did you not go to examine the 1,500 pages of documents.  The answer given by Mr Fraser, we would respectfully submit, disposes of the entire case, that he did make inquiries of his staff about the nature of all the documents requested including the manual and he formed a view they were non‑administrative in nature because it was all about the how and the why and the what the Secretary did in supporting the Council, that is, excluded by section 6A, and none of them were of an administrative nature in that they went to the heart of how the business manages itself, pens, pencils, desks, pads, staffing decisions which had no bearing on the core business of the agency. 

Now, that is the distinction which allowed Mr Fraser to reject the request based on the categories without inspecting 1,500 pages of documents, and, in our submission, he was acting on a correct view of section 6A, and for that reason there is no case for a remitter for the Tribunal to pore over the 1,000 pages.  The answer that he gave at that point was then left there by Council and that was shortly thereafter the end of the cross‑examination.  Nothing was put to Mr Fraser to suggest that buried in the other categories there was something which could be extracted out as separately having an administrative character.

FRENCH CJ:   Would you exclude from the category of matters of an administrative nature, matters dealing with or concerning the timeliness of the process, perhaps estimates of the cost per nomination, the administrative costs per nomination of the process?

MR GLEESON:   Your Honour asked would you exclude them from matters of an administrative nature.

FRENCH CJ:   Yes.

MR GLEESON:   They may come back within matters of an administrative nature because coming to the heart of it what that exception to the exclusion is about is what Justice Crennan put this morning; it is about efficiency of public administration.  The underlying proposition was that although courts and judges are prima facie outside the Act and the Governor‑General is outside the Act and the Official Secretary is prima facie outside the Act, notwithstanding all of that, there is one aspect of what these Chapter II and Chapter III bodies do where the public does have a legitimate interest in knowing what is going on, scrutinising it, participating in it and so on.  That is, are the public resources being used efficiently, to put it shortly, and that aspect of the operation of the Federal Courts and of the Governor‑General is what is brought back within public scrutiny under the final words of section 6A.

For that reason, to take up Justice Gageler’s question, in the context of this Court – and this is actually referred to in the very material in the Parliament – when the decision was made to give self‑administration to this Court which was just before section 5 was put in, attention was drawn to this question: those truly administrative matters as to how is this being run as an agency which prior to that point in time were dealt with in a government department but are now being moved into the court, should they by reason of the move be immune from the scrutiny which they would otherwise have as with any other agency, to use that term very broadly, of government? The answer was no.

So, to the extent that the High Court under section 17 of the Act – and we have given your Honours a short bundle which has section 17 in the form at the time of the introduction of section 5 and in the current form – in its form at the time of the introduction of section 5 – it is at tab 3 – section 17(1) is the self‑administration provision and section 17(2) indicates the types of things the Court may do pursuant to that power.

The underlying principle of section 5 was, to the extent the Court is doing these things, administering its own affairs, it should be subject to the same duties of disclosure as other parts of government. To answer your Honour Justice Gageler’s question, a tender for the refurbishment of the Court would be a matter of an administrative nature. It would go to this question of how does the Court administer its own affairs? To the extent the Official Secretary is managing his office, doing the sorts of things in section 17, the intention was that should also be open to scrutiny. That is the field covered by the exception to the exclusion in section 6A.

CRENNAN J: Would that be subject possibly to section 47C?

MR GLEESON: Section 47C I will come to in just one second. In terms of the Official Secretary, this is the field where he is to be open to scrutiny.

GAGELER J:   Can I just pick you up on that?  Do you narrow the field simply to the administration of his office?  Take the pens and pencils example given at page 83 of the appeal book.  Do you draw a distinction between pens and pencils purchased for the office on the one hand, and pens and pencils purchased for use by the Governor‑General on the other?

MR GLEESON:   No, no, so let me come to that plus your Honour Justice Crennan’s question.  We use the word perhaps loosely the Governor‑General is immune from the Act.  If we make that tighter, the Act is defined deliberately not to reach the Governor‑General in the same way the Act does not reach a federal judge.  The reason for that was that the Act evinced an intention that the processes of the Governor‑General were not such as to require opening up to public scrutiny consistent with the objects in section 3 of the Act.  Could I just go to section 3 but not forget I am trying to answer a question?  The critical object in section 3 is to give community:

access to information held by the Government –

pausing there, broadly that is referring to executive or Chapter II government but not all of it by:

requiring agencies –

that is a defined subset of Chapter II, most but not all of it, to do two things; publish information and provide for access to documents.  The purpose of that, we are then told, is to increase:

public participation in Government processes –

leading to better decision‑making, more scrutiny and so on.  The essential decision made in respect to the Governor‑General is that this public interest in opening up a Chapter II government to public scrutiny and involvement did not extend to the Governor‑General and that anything and everything the Governor‑General did across any functions did not call for this form of public scrutiny and involvement.  That is the reason the Governor‑General is completely outside the Act.

GAGELER J:   Well, the Governor‑General is simply not an agency.

MR GLEESON:   Is not an agency.

GAGELER J:   But documents signed by the Governor‑General can be held by another agency and need to be disclosed. 

MR GLEESON: Yes. So we then come one step down to the Official Secretary and returning to your Honour’s question in part. In the real world, the likelihood is that many, most but perhaps not all, of the documents created by the Governor‑General will be in the possession, custody and control of the Official Secretary. It will be part of an Official Secretary’s role. If the primary rule is the Governor‑General is not to be a prescribed agency and is not to be subject to the reach of the Act, one reason to give the Official Secretary the prima facie exclusion of section 6 is simply to protect the Governor‑General’s documents because otherwise he would get through the Official Secretary that which you cannot get from the Governor‑General.

So bearing in mind the role of the Secretary, we get to a partial understanding of why section 6A has a general rule, the Official Secretary is not required to provide access to documents.  Therefore, in the example of the pens of the Governor‑General, whether they are strictly in the possession of the Governor‑General or of the Official Secretary, it does not matter.  The way one approaches that is to say you cannot ask the Governor‑General for such documents.  If you are asking the Official Secretary for documents, whether in a sense it is the Official Secretary’s or the Governor‑General’s, you apply the section 6A test where the general rule is you do not have to answer requests, the exception is matters of an administrative nature.

So if the request ultimately is how much money is spent on pens by the Official Secretary or the Governor‑General, the answer is that is producible, so that is that. Where does 47C fit in? Section 47C, as your Honours’ questions exposed, is so framed that in most cases it will not protect the Governor‑General. It may in a limited case where the Governor‑General’s document has actually engaged the Government of Australia, which may perhaps be the making of a regulation, but in general it does not give the Governor‑General protection.

How does the Governor‑General get the protection which is consistent with the Governor‑General not being a prescribed agency:  by at least two means.  The first is by section 6A itself, that the requests to the Official Secretary may be refused except if they go to how the office is being run in the manner I have described it.

GAGELER J:   It is not just the office though; it is also the Governor‑General’s affairs, is it not?

MR GLEESON:   Yes, how they are being run, the office, and the Governor‑General’s affairs.  The second protection – and in this sense for better or worse, the Governor‑General is no better than a federal judge or a Judge of this Court.  To the extent the Governor‑General’s documents pass beyond his or her control, if a letter is written to the outside world and gets into the hand of an agency, then the agency may have a prima facie duty to respond to a request for the document, but subject to the exceptions for exempt documents, and the critical exemption that would usually apply and would be relevant in this case would be section 45.

GAGELER J:   Explain that?  How would section 45 apply?

MR GLEESON:   It would usually apply – and I said in the present case would be likely to apply section 45 – if the Official Secretary pursuant to the manual requests a reference from a person in respect to a nominee and the Official Secretary imposes an obligation of confidence upon the recipient of that request, then that obligation of confidence will be such as to attract section 45.  So an agency, who then has that document, if asked to produce, could say well, I have only received the request in confidence and for that reason I refuse to provide access.

GAGELER J:   Whose confidence is being protected in that scenario?  Who would have the action for breach of confidence?

MR GLEESON:   Well, it could be at least – in my example, it is either the Official Secretary or the Governor‑General or both because that is the person that has imposed the obligation of confidence, but it is more likely in many cases to be a joint obligation of confidence because if I am, say, the Minister for Defence and I receive a request for a referee in respect to a person nominated for an honour and if I am asked to treat it in confidence and if I send my letter back and say, as would ordinarily happen, I provide my reference to you in confidence, one would have a joint action for confidence.

GAGELER J:   Well, the Secretary is an agency ‑ ‑ ‑

MR GLEESON:   Yes.

GAGELER J:   ‑ ‑ ‑ so the person referred to in section 45 cannot be the Secretary.

MR GLEESON:   Your Honour is correct so ‑ ‑ ‑

GAGELER J:   So, who is the person?

MR GLEESON:   It is the Official Secretary or the Governor‑General who has imposed the obligation of confidence.

GAGELER J:   Well, but it has to be, it would have to - one has to look for an action by a person other than an agency.  It cannot be the Official Secretary’s confidence that is protected by section 45.

MR GLEESON:   Well, I am driven back to the Governor‑General’s confidence which is consistent with the constitution of the order.  It is the Governor‑General who is the Chancellor of the Order.

GAGELER J:   We have to contemplate the Governor‑General bringing an action for breach of confidence.

MR GLEESON:   Within the framework of your Honour’s questions, the questions are about, with respect, how does this Act deal with the Governor‑General and my answer is, firstly, it has deliberately decided not to reach the Governor‑General and not to expose the Governor‑General to the burdens of the Act for a variety of reasons.  Secondly, I have accepted that it is possible that documents of the Governor‑General, if the Governor‑General releases them to someone who is an agency, may then be, prima facie, the subject of disclosure by the agency subject to the scope of these exceptions.  This is the exception I pointed to as the obvious one.

CRENNAN J:   If you take a reference, I suppose the way it works is that a reference is elicited from a referee on the basis that it can be provided confidentially.  So it is the referee in a sense who probably takes up that invitation, providing a confidential reference.

MR GLEESON:   Yes, yes, and in that frame, your Honour, the referee could say “I only gave my opinion privately on the basis that it was for use for one purpose only and I impose the obligation of confidence ‑ ‑ ‑

CRENNAN J:   Yet a referee may not be willing to give a reference if it is going to be publicised.

MR GLEESON:   Yes.

CRENNAN J:   It is part of the system, I would have thought.

MR GLEESON:   My point is not that the Governor‑General gets a watertight protection against disclosure by any one of the Governor‑General’s documents under this Act.  It is not framed that way.  The Governor‑General gets substantial protection through a combination of not being a prescribed agency and if the documents get into the hands of someone else, there may be one of these exemptions available.

The point I hasten to make is that that is no different to the position of a federal judge under section 5 because under section 5(1)(b) federal judges below this Court are deemed not to be prescribed authorities so they do not need to directly answer the obligations of the Act. But any document which a judge conveys to any other person may then become the subject of the Act, so if it is conveyed to the registry, it will then fall within section 5 and it will be prima facie not producible unless it is of an administrative nature. If it is conveyed to the outside world, it will be in the same position as my section 45 example.

So, there is one element of truth in what Mr Merkel has said which is that the form of protection given to the bodies in section 7, such as ASIO, is in a sense more complete than the protection given to the Governor‑General or to federal judges.

The position in respect of Justices of this Court, as we have said in our written submissions, is that your Honours are simply outside the reach of the Act again because of the appointment under the Constitution not under an enactment, but the same principle would follow. A communication by a Judge of this Court to the Registry of this Court is dealt with under section 5. The communication to a person other than the Registry is dealt with by whether it gets in the hands of an agency and then subject to the exemptions for exempt documents that I have referred to.

So, having been down that detour it does not tell us anything that resolves section 6A.  It tells us that Governor‑General is directly, at least, beyond the reach of the Act, indirectly may possibly come within the reach of the Act in the qualified way I have mentioned.  The purpose of section 6A is that because of the intertwined relationship between the Official Secretary and the Governor‑General the Official Secretary needs the general protection of not having to answer these requests for access - needs it for two reasons.  The first is the one I have mentioned which is, in the real world, many of the documents of the Governor‑General will be in the hands of the Official Secretary.

FRENCH CJ:   Well, this is a question then of coherence between the limitation that the Act does not apply to the Governor‑General at all because the Governor‑General is neither agency nor prescribed authority and the position of the Official Secretary.

MR GLEESON:   Yes.  The coherence comes in two senses.  One is the practical sense that as Secretary that is where most of the documents will be, so you cannot achieve the purpose of placing the Governor‑General outside the Act unless you give the prima facie protection to the Official Secretary.  The second, which is perhaps slightly more elevated, is that because the function of the Official Secretary is to assist, to use the bland language of the Governor‑General Act, but that translates into the function of providing support across the entirety of the Governor‑General’s very important functions, the intention is that in general the communication between the Secretary and the Governor‑General is not to be open to the public scrutiny by this Act.

So what that means is if the Official Secretary is speaking to the Governor‑General about something which may be of constitutional significance, the reserve powers or something fractionally beneath that, as in, is there a reason not to make a regulation or how the ceremonial powers should be exercised, the Act recognises that that communication can occur free of the need, under this Act at least, to open it up to public scrutiny. Why? Because the very special place of the Governor‑General at the top of Chapter II, and of the Constitution as a whole, is such that the Governor‑General ought to be able to freely and frankly have that discussion.

GAGELER J:   What about whether a function should be held on one day rather than another day?  How many guests will attend?  What airfares are to be booked, on what occasions – those sorts of things?

MR GLEESON:   If we are in the area of is the Office, including the Governor‑General, being run in accordance with the principles of efficient public administration, then it is producible.  What airfares may well come into that category.  If it is in the area of the support being provided in the relationship between Official Secretary and Governor‑General, it is not producible.  Let me give an example. 

The Official Secretary has a discussion with the Governor‑General as to whether, in the light of the bushfires, it is appropriate to cancel every engagement on the record and disappoint a range of community groups in order to visit the bushfires.  We would say, that is not producible under section 6A because part of the Governor‑General’s function is to decide whether her important community presence should be allocated to (a) rather than (b), and part of the Official Secretary’s function is to provide the advice which may only be the sounding board for that question.

If it is a question whether travel should be at one class or another, that is likely to fall into the category of efficient public administration and may well be within the exception.  So there will be some close to the line but the touchstone is, on the one hand, the only matter where the Office and the Governor‑General should be opened up to public scrutiny and decision‑making is in the area of efficient public administration.

FRENCH CJ: You draw a distinction in, I think, paragraphs 65 and 66 of your submissions between what I might call the relative homogeneity of the judicial function which is, ultimately, the subject directive of section 5 and, by analogy, of section 6 and the heterogeneity of the Governor‑General’s functions.

MR GLEESON:   Yes.

FRENCH CJ:   Does that lead to a narrow view of matters of an administrative nature or a very high level of generality in the definition, or the understanding of that term as it appears in 6A?

MR GLEESON: Yes. It probably bears more on what we would put as the general rule within section 6A – that is, the exclusionary rule which comes before the exception. Where we see the true commonality between section 5 and section 6 is that the exception in each case goes to the question of efficient public administration, as I have put it. What things are being done, whether within the Court or the Office, which are functionally the same as the things done by other bodies of government that are spending public money on public purposes. Pens and stationery make it sound a little mundane but they can be very important questions of, how is a budget of X million dollars allocated between various functions available to either a Court or an Official Secretary. The commonality comes in at the meaning of the exception which is that interest in efficient public administration ‑ ‑ ‑

FRENCH CJ:   I wonder whether that suggests, rather than a definitional approach to matters of an administrative nature, you are taking a purposive approach which has to be applied in the light of the particular function that one is looking at.

MR GLEESON:   Your Honour, that is probably correct.  I had sought slightly to qualify what I said, which is that we put that - in terms of the exception, as I have called it, one can see substantial common ground across the different sections, but the application of it is going to vary depending upon the precise function at hand.  If one looks at the court, for instance, Mr Merkel says, well, a registry provides a raft of support and assistance to a court and in general a lot of that might look administrative.  He then says, well, because the Official Secretary is a support person it is the same thing occurring, namely, support, and so you would naturally expect that much of what the Official Secretary is doing is again administrative and caught by the exception.

That is where the error comes in, because once one recognises the Governor‑General is functionally doing something very different to a court across this range of functions, leave aside the similarity of the oath, one immediately sees that the support which the Official Secretary provides also has a diverse and multifarious character.  In a sense, the Official Secretary is a combination of a CEO, similar to the CEO of a court.  He is higher than but performs the functions of a counsel assisting or a judge’s associate.  He or she, as the case may be, is a close trusted adviser.  Now, those support functions are performed in those various ways across the whole gamut of the Governor‑General’s functions and ‑ ‑ ‑

FRENCH CJ:   All found within the vessel of the word “assist”.

MR GLEESON:   Assist, and the Governor‑General’s ample power to decide how much or how little assistance she needs.  The Governor‑General as Chancellor could in theory say, “I’ll do the whole order myself - that will mean I can only have 10 applications a year - and I will make all the phone calls myself”, subject to the Council’s role in the letters patent.  So that very ample discretion of the Governor‑General in each case including this one is, “What forms of assistance do I desire my Official Secretary to provide?”

So when one looks functionally at the Official Secretary’s office, it is fairly easy to see one role of assistance which is fairly similar to section 17 of the High Court Act.  It is running the entirety of the office and the household, the viceregal household.  That is one function, and that is one that fairly amply attracts the exception.  Then one thinks of the other aspects of support, ranging from my example, I trust not a trivial or mundane one, “Should I cancel one range of viceregal appointments to meet a more pressing need?”, through to what could be the matters of the highest constitutional import, “How are we to deal with the possible exercise of powers constitutional in nature?”, and the Governor‑General is entitled to call upon such assistance as she desires from the Official Secretary in that process.

So that leads us to the view that whenever a substantive function of the Governor‑General has been engaged, as the Full Court expressed it, then whatever the Official Secretary is doing to assist that is ordinarily given the protection of section 6A.  Simple rule, very easy to apply.  We know what the exception is about; the exception is about the efficient public administration.  So in the present case, a request which said I would like to know, for instance, how many nominations are being processed a year, what are the timeframes for processing of them, perhaps how much of the overall budget of the office is being devoted to the Order of Australia as opposed to something else – I do not want to go too far to encourage the imagination of FOI lawyers, but those sort of matters attract the notion of efficient public administration and they are prima facie ‑ ‑ ‑

FRENCH CJ:   Or the existence of documents.  You would be requesting documents containing such information.

MR GLEESON:   Exactly, yes.  That is what 6A is designed to give the public.

CRENNAN J:   So you have to look at the function rather than the independence with which the function is carried out, which, as I understood it, was the weight of Mr Merkel’s argument.

MR GLEESON:   Yes.

CRENNAN J:   Looking at the mischief, and I think he probably concedes, inspired to some extent by Bienstein, his argument seemed to be that as long as you preserve the independence of the decision‑making processes that was only what needed to be quarantined.

MR GLEESON:   Yes, and of course one error with that is it is forcing the various roles and functions of the Governor‑General into a solely judicial or quasi‑judicial framework.

CRENNAN J:   Well, I think that is right because section 17 of the High Court Act points out that there are functions which might be desirable for them to be independently undertaken, but the distinction, if you like, does not really assist in relation to section 6A perhaps.

MR GLEESON:   The other answer is that one can seek to ensure which public purpose or mixture of public interests led to the rule, but the rule in the end is one to be assessed against the objects in section 3, which is Parliament has decided that there is a certain absolutely critical element of the executive power which is not to be opened up to public decision making.  That is the primary decision which is the Governor‑General per se, and therefore ordinarily the Official Secretary, are not a part of government where their decisions require the protections of this Act to open them up to public scrutiny.  So the decision of the Governor‑General as to how to allocate her time in relation to community functions is not a decision which this Act says the public has a right to know and participate in and scrutinise through the processes of the Act.

What that leaves is that most or many of the activities of the Governor‑General will be public, either by necessity through the making of a regulation, or through choice.  The vice‑regal calendar, which is traditionally published, is published through a choice that there is a sufficient interest in the public knowing those activities for that to be done voluntarily.  What the Act says is those decisions as to how much of your processes to open up is something that the mechanism of this Act can leave well alone. 

The decision is then left either to the Governor‑General or to any other principles of law that apply.  That is the critical decision that has been made.  Why has it been made?  Well, one can….it.  There is a range of public interest.  There are certainly the ones Mr Merkel mentions - independence, impartiality, but beyond that there is the interest in the Governor‑General, both in her own thinking and in her dealing with her trusted advisor, having, as we say, the freedom to know my decisions are not open to public scrutiny.  There is perhaps the more mundane notion that the Governor‑General and, in general, the Official Secretary, should not be subject to the burden of answering requests.  It is a whole combination of public interests which have led to that conclusion.

Your Honours, there are two other matters – perhaps more than two, but two others I have not yet covered that I did want to address on the general point.  One is the assistance from the background material and the second is Bienstein which we submit is…..  Could I just deal with those two points?  The background materials commence with the Senate report in paragraph 12.29.  The purple passage in that paragraph, your Honours would have noticed, was not read by Mr Merkel.  The purple passage, having identified that there were some matters:

of a more clearly administrative character associated with the functioning of registries and collection of statistics on a host of matters associated with judicial administration which, equally clearly, should be opened up –

The examples are then given –

sitting days . . . cases determined . . . cases withdrawn –

appeals and bail.  That is the core of the public administration notion of what should be opened up for consideration.  When one then goes to the parliamentary debate, Senator Evans at page 1768, halfway down the first column, is advancing that very argument from the Senate Committee and he said at the end of the middle paragraph there:

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 kind of matters that the Committee had in mind as justifying the operation of the Bill were –

and then he quotes directly the purple passage from the Senate report.  Then, critically, he links this to the change in the High Court Act ‑

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.

So the grant of self‑administration of the Court provided a clear need to ensure that the type of public scrutiny which could have been applied to the Attorney‑General’s Department would carry over to this defined aspect of this Court’s functions, and that is made clear in the next paragraph.  The concern was that these “questions of administrative efficiency” were not “locked away within the bosom” of the High Court.  He says a bit further down, “That is the justification for the amendment”.

So while Mr Merkel says, well, this was one of many reasons to make – to bring courts in a limited sense within the Act, it is the core, it is the central reason, namely, if the administration of this character has been transferred into the Court it should remain subject to the same form of scrutiny.

In Senator Missen’s speech, about 10 lines from the bottom of that page, he is in support:

I do not believe that that is correct in regard to administrative activities of courts which, in that respect –

that is the same respect:

are very much like any other government body.  The statistics which were given in the Senate Committee report and by Senator Evans are examples of those documents that should be made available for public debate.

It is quite common for this Parliament to debate the [alleged] inefficient way in which courts get through their business.

FRENCH CJ:   I am glad you inserted the word “alleged”. 

MR GLEESON:   Yes.  So, the point is being made, it is a matter of legitimate debate even in Parliament.  I will put it more neutrally.  Are public resources being efficiently used in courts?  That is the matter which is to remain open for access through this new guise.  Senator Durack expressed his reservations which did not prevail in terms of the amendment.  When it came back to ‑ ‑ ‑

FRENCH CJ:   He highlighted the boundary difficulty.  I mean, it is a boundary difficulty that is reflected in a larger way in attempts to develop measurements of the efficiency of courts and try from a creeping sort of intrusion into things which might properly be called the judicial function.  It is not always an easy line to draw.  I mean, for example, in this context, the context we are talking about today, it might be that there could be an argument about mechanisms for ensuring the quality of the work done by people who are working on nominations, performance reviews and so forth.

MR GLEESON:   No doubt that is correct, your Honour, subject to two matters.  The first is although we can speak of it as boundary drawing and in a sense, in the practical sense, it is, that expression should not gloss over the fact that we have a prima facie exclusionary rule subject to an exception. 

FRENCH CJ:   That is where the notion of a purposive construction of the exception comes in, I think.  Perhaps even a purposive application in particular categories of function undertaken by the Official Secretary. 

MR GLEESON:   Yes, and we seek more than the appellant to understand the purposive nature of the exception by understanding why the exclusion is there in the first place and why the Governor‑General is outside the reach of the Act and that feeds in to help give one the answer.

CRENNAN J:   But Mr Merkel has said that he identifies the error in the Full Court when the distinction has been made between the substantive powers and functions and the apparatus supporting the substantive powers and functions.  He identifies the error and this is perhaps the most difficult example of the categories of documents in the list with which the case was opened but what he says is, as I understood him, was that the working manuals are, ostensibly, or prima facie, or capable of being documents of an administrative nature.  So he identifies the error as being not putting them in, if I can be colloquial, the apparatus box.

MR GLEESON:   Yes.  With respect, what he has done there is to misread what is an admittedly very brief line in the Full Court’s judgment.

CRENNAN J:   Paragraph 22?

MR GLEESON:   Yes.  As a whole, when the court is speaking of “apparatus” it is speaking of what we are speaking of, what are the things that you do in order to allow yourself to provide your support function?  How do you ‑ ‑ ‑

CRENNAN J:   Section 17‑type functions.

MR GLEESON:   The section 17 issues.  That is what, with respect, the Full Court had in mind and that is why they go on immediately to say things like statistics, and the like.  It is true that the Full Court did not, as far as we have sought to do, explicitly draw out the support function of the Official Secretary.  That is part of what we have tried to offer in our submissions, that it is not just a case about identifying the Governor‑General’s functions, but it is about the support function of the Official Secretary, in its various forms and, we would submit, the Full Court by talking about “apparatus”, is not talking about the things done in the support function. 

It is talking about the things done in order to be able to engage in the substantive support function, so that when the Secretariat – to take manuals – the Secretariat receives a nomination, the staff member opens the manual, unless they know it by heart, and says, well, these are the steps I must follow in order to be able to put sound information before the Council.  I need to obtain certain references.  I need to research beyond the mere references.  I need to make these sorts of character checks and I need to assemble this nomination within the parameters which the Council has said it wishes to consider them.  That came out very clearly from the evidence I read.

So that is being done, as Mr Fraser says, because the Council said that is how I need the information assembled in order that we can make a considered decision.  So the manual reflects, of itself, as it were, the general guidelines and criteria which the Council has adopted in order to make its sound decision.  So if you hand over the manual, what you know is how, in the usual case, and by inference probably in the particular case, how the nomination got from the stage of nomination through to being considered by the Council.

So, even on Mr Merkel’s approach that they cannot get access to any step in the decision‑making process, the manual is telling you how decision‑making will occur in the usual case and by inference it is telling you how it probably occurred in your particular case.  So, for that reason, it has gone to the heart of the performance of the function.  But the apparatus – things like how many staff does the Official Secretary allocate to dealing with nominations?  How efficiently do they do it?  How much money is spent on it?  How long does it take to deal with nominations, and so on?

Your Honours, just to conclude that Senate speech, you will see at the top of page 1770, the same point is returned to when they deal with the other tribunals, Senator Evans says:

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.

Now, accepting your Honour the Chief Justice’s point, the line may be difficult to draw and the line may creep over time.  It is nevertheless tolerably clear what is intended to be covered by the exception and one can see that a person trying to get those sort of documents would never draft the categories that are in issue in this case. 

Ms Kline does not want to know about the matters on page 1770.  What she wants to know about is why was her nominee rejected, and what she is trying to do is to say, well, I will not look at the ultimate document which might tell me the reasons of the Council, but if I get to see the correspondence I will see the references.  If I get to see the file notes, I will get to see all the inquiries that were made about my nominee. If I get to see the manual I will know how the process probably went and from that I will get a substantial insight into why my nomination failed.

GAGELER J:   Well, she could say that she is interested in efficient public administration within the secretariat administering this important part of the Governor‑General’s function.

MR GLEESON:   Not with the categories of document she has identified, your Honour.  They are tailored to two subjects.  One is her nomination.  She wants the correspondence and the file notes on her nomination and then she wants to know the processes by which nominations, including hers, progress from receipt through to consideration by the Council. 

Now, that is just seeking to open up a substantial part of the administration of the Order of Australia.  So the way we would apply section 6A to that request, the request has targeted something which goes to the heart of the performance of a function which the Official Secretary conducts for and on behalf of and at the request of the Governor‑General to enable her to perform her function and it is a request not targeted to ascertain documents bearing on efficient public administration.

Your Honours, the second matter I wanted to refer to on the general points was Bienstein. We were not sure if the appellant commended the correctness of this case, but this morning it is clear the appellant does. Can I indicate where we submit Justice Gray went wrong? It is (2008) 170 FCR 832. At 45 he commences an accurate summary of the history with the original Bill which would have excluded courts completely, then the change, the material from the Hansard that we have seen, and then at 50 he correctly refers to the significance of the High Court Act in that context.

Then at 51 he sets out an argument which is of the same genus as our argument today, slightly differently expressed, but the argument was that section 5 excludes all documents except those that were of general significance in relation to the operation of the court as distinct from individual proceedings. The phrase, “matters of administrative nature”, was understood by the Senate by reference to the kinds of examples to which Senator Evans referred. Documents relating to numbers of sitting days and so on were good examples and the purpose ought to be understood as relating only to such general subjects. So, expressed slightly differently, that is our argument.

His Honour then says “There are difficulties” with that argument - paragraph 52 - and in the middle of that paragraph, one of the difficulties he finds is that it does not sit well with the definition of “administrative nature” in the AD(JR) Act.  That is a completely false analogy because the AD(JR) Act is trying to distinguish between administrative matters as opposed to legislative and judicial, for the purpose of establishing rights of judicial review, so an unhelpful analogy.

Then in 53 he makes a further mistake, with respect.  He thinks there is a practical difficulty in accepting this argument.  The practical difficulty is that if you asked for the information that Senator Evans referred to, there may not be such a record compiled by the court and therefore, it would lead you to have to ask for and obtain individual court files in order to be able to make you own statistics up. 

The problem with that is, he has, with respect, confused a right to access documents and a right to information and your Honour raised that distinction with me earlier today.  He is assuming, in effect, that the argument propounds a right to access statistics and therefore, if there is not a statistical document prepared, you must therefore give all the individual cases files.  That cannot be right.  Therefore, he says there must be some reading down process going.  At that point, we submit, the analysis has gone wrong.

There is then various discussion of Fingleton and the like and then 67, we would submit is wrong.  He takes Fingleton as illuminating section 6A and Mr Merkel takes the same approach and addressed you this morning on propositions about judicial immunity. First of all, it is a carryover from the courts to, in Mr Merkel’s argument, the Governor‑General but more fundamentally, section 6A does not simply replicate judicial immunity and the same with section 5, as it were.

It does not say courts must produce all documents, save where it would impinge on the independence and impartiality of judges.  It goes beyond that and says, in general, you produce nothing except if it is in the category of administrative matters.  So, relying upon Fingleton, the first and second sentences of that paragraph are correct.  The error is in the third sentence:

It follows that the exercise of those functions, although it might be termed “administrative”, ought to be protected from scrutiny by the other arms of government, or by members of the public.

So the analysis his Honour seems to be conducting is that the Court has its primary judicial functions which ought to be free from production of documents.  You then have functions which are administrative in nature but so closely related that they also should have protection.  Then he says there are other things which would just be ordinary administration.  In order to protect that second category, that is, the Fingleton category, his Honour reasons that they must be treated as administrative but you then must have a further carve‑out.  It is getting rather complicated.

But his Honour’s analysis is that in the example given this morning in argument when the Chief Justice decides in a memo who to allocate to a case, that should be treated as prima facie administrative, prima facie the public would get it, but that cannot be right, says his Honour, so you then reason for a further exclusion, which is although it is prima facie administrative, the interests of judicial independence override that conclusion and therefore it remains immune.  That is the process of reasoning that his Honour seems to adopt.

There is a flavour of that in the appellant’s argument today, namely, treat the word “administrative” as having a very broad connotation and then carve out from that things which you need to in order to protect independence.  That is partly why the appellant says you can treat many stages of this process as administrative but you exclude the decision‑making process because that protects the fundamental interests of independence of the Governor‑General.  None of that reasoning is necessary if you do not start down the byway.  If you start from the proposition that in general the Official Secretary or the Court is relieved of the obligation to produce such documents, the exception is for documents relating to efficient public administration; none of this process of reasoning is necessary.

Finally, your Honours might note in 78 that his Honour regarded the Senate report and the Hansard as supporting the view that section 5 is:

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.

That, we would submit, is the exact opposite of what one gets from the extrinsic materials.  His Honour has somehow reasoned that documents which self‑evidently are not administrative are in fact prima facie in the administrative category, and then you do the further carve‑out ‑ ‑ ‑

CRENNAN J:   His Honour seems to accept that his test will not be easy to apply.

MR GLEESON:   It is not easy to apply and each of your Honour’s questions this morning to Mr Merkel has produced the answer, “Well, that is in the grey category, your Honour”.  It is not easy to apply.  In fact, it is almost impossible to apply.

So, although the Full Court did not do other than note Bienstein in passing, we would submit that it is simply incorrect, and to the extent it flavours the appellant’s submissions your Honours would not have regard to it. 

Your Honours, if I could just then conclude with paragraphs 13 to 15 of our outline, which return to the particular case.  Once one understands the nature of the Order of Australia and the responsibility of the Governor‑General everything in the process takes place under the direction of the Governor‑General, and as the Official Secretary provides support so the Governor‑General’s function is advanced.  The two are inseparably intertwined and it lies outside the Act.

So then finally in relation to the categories of documents, on our construction, none of them are so framed as to identify matters of an administrative nature.  Instead, as framed, the documents would reveal steps in the process by which, in the usual case or the particular case, nominations progress towards a final decision, all as a part of the administration of the Order for which the Governor‑General has ultimate responsibility.  For that reason the Full Court was correct.

CRENNAN J:   Is category 4 asking about internal review documents - page 7 of the book? 

MR GLEESON:   That is the only one I need to say anything specific about, the others I have covered in argument.  We have dealt with this right at the end of our written submissions.  It turns out this is one is an idle inquiry because there are no such documents.  It is dealt with in our written submissions at paragraph 70.2. 

I will come to the document in one moment, but the evidence that was given before the Administrative Tribunal was that there are no appeal or review processes.  The only rule in place is the three year rule which is you may not resubmit an unsuccessful nomination within a three year period.  As is said there, the information relevant to that was provided to the appellant outside the FOI Act. 

The footnote refers to exhibit 4 before the Tribunal, and the next footnote refers to Mr Fraser’s cross‑examination which referred to and adopted that report.  That report is not in the appeal book.  Could I have leave to hand up the first five pages of that report?  This is a document given to Ms Kline outside the Act, and it is a document which makes good that there were no appeal or review processes.

FRENCH CJ:   Now, was there a finding by the Tribunal?

MR GLEESON:   The answer is no, your Honour.

FRENCH CJ:   Was there a finding by the Full Court?

MR GLEESON:   No, the Full Court did not go to this level of detail.

FRENCH CJ:   No, well, what are we to do with this?

MR GLEESON:   To the extent this point remains alive in the appeal, the Full Court was entitled to find no error of law in relation to this category of document because it had the evidence of Mr Fraser at appeal book 82 to 83 adopting Mr Bonsey’s report and Mr Bonsey’s report in 2011 was into the very question whether there should be such a right of review.  So, it is on page 3 of the report, last paragraph.  So it is evidence that at the date of the report in 2011, there was no such right of review and his recommendation was that there should not be any such right of review.  That is one answer to the point.

FRENCH CJ:   Only if we find it as a matter of fact.  Your primary argument has to be in relation to characterisation of that class of document, does it not?

MR GLEESON:   Then in terms of characterisation of class of documents, whether there ought to be a right of internal review is a matter for the Governor‑General to decide in her administration of the Order of Australia.  That is not a matter going to the excluded territory of efficient public administration.

GAGELER J:   Why not?

MR GLEESON:   It goes to the heart of the Governor‑General’s ability and freedom as the Chancellor to say what are the means by which I will decide who will receive the honour.  That is her ultimate responsibility.  Who will I give the honour to?  That question then gets fleshed out into questions such as what is the research I want done on the candidates.  What do I expect of the Council in terms of recommendations?  What do I do with recommendations? If I have made a decision, no, should I admit of the possibility of error?  That is a question for the Governor‑General as to how these awards should be granted or not.  That goes to the very heart of the performance of her function.

FRENCH CJ:   What kind of review processes are being talked about here?  I mean one can guess at a variety of possibilities that there might be some internal quality control mechanism.  There might be some complaint initiated mechanism, somebody puts up a nomination and then finds out on the day of the awards or a week before when they would expect to get a letter notifying ‑ ‑ ‑

MR GLEESON:   They are the sort of matters Mr Bonsey was considering.

FRENCH CJ:   Yes, I am just wondering what the concept mentioned in that category must be taken to refer to; this is the request made to the Official Secretary.

MR GLEESON:   Yes.  On page 4 in the second full paragraph he is contemplating a possibility of introducing a rule that the Council either would consider or in certain circumstances would consider a second time a case that it has recommended against, but he says that is not a good idea.  He says if the Council wants to do that that is a matter for them but not the case for a rule.  Apart from that, he has started by considering whether ‑ ‑ ‑

FRENCH CJ:   I am not really concerned about Mr Bonsey’s report, I am just concerned about the interpretation that the recipient of this request places upon that category.

MR GLEESON:   I understand.

FRENCH CJ:   It seems to cover a spectrum of possibilities.

MR GLEESON:   Yes.  As we read it, it is asking have you set up within your processes a mechanism of review whereby if someone is unhappy with the outcome they can have a second chance, is there such a document that shows you have such a process?  So our first answer to that is, on the facts, there is no such document because there is no such process; that is the first answer.  The second answer is, even as a matter of characterisation of the request whether there is to be any second look at nominations is a matter for the Governor‑General to decide as to what forms of assistance she wants from the Council because ultimately it is her decision.

If the Governor‑General, contrary to the present fact, were to institute some such right of review, one would expect that probably it would be made public in order to be effective; if that is what she wanted, she would make it public but ‑ ‑ ‑

FRENCH CJ:   You get a letter to the nominator saying, if you are unhappy with this decision you have a right of review.

MR GLEESON:   Well, what might happen is that in the information which covers the nomination form, which is in the appeal book where the process is explained – that is pages 144 and following – one would expect that the process would be explained and it would be told you have a second bite at the cherry.  What one sees from 145 fairly clearly is it is a process where nothing of that character is revealed to the world, but in the end we would submit this one is, in effect, an idle inquiry; there is no document of that character, it is just a hypothetical matter.

If the Governor‑General were to change her current position and try and adopt such a process, it is a matter for her, and she would then choose how to make it public.  In order for it to be effective, you would expect this document would have to be amended.  But in terms of the individual person nominating, that is, Ms Kline, it is difficult to see what more she is seeking in respect to her unsuccessful nomination.

FRENCH CJ: Incidentally, I notice that the criteria – the matters of which the Council seeks to satisfy itself at the bottom of the left‑hand column on the first page of the nomination form – look like an elaboration of the criteria set out in the letters patent and the Constitution attached to them.

MR GLEESON:   Yes.  To that extent, that material is made public as to this is what you should be directing your mind to if you wish to put in a nomination.  Similarly, in terms of what might be the true administrative aspects of the process, they are made public in the annual report of the Official Secretary in any event.  Your Honours will see an extract of the annual report commencing at 156 – 157 is a useful diagram explaining where Mr Fraser sits and explaining the raft of support functions provided by the various divisions within the Office. 

The awards themselves are specifically referred to at 161.  At line 20, there is information on how many nominations are submitted each year, length of time to process nominations.  That is a document which the Official Secretary is required to provide under the Governor‑General Act, section 19. So the sorts of matters which would be covered by the exception are the subject of publication, in general, in any event. Those matters are well known.

Your Honours, just one final matter.  If your Honours could go back to the appellant’s reply at paragraph 3 to their test.  If one looks at that test and the steps that it prescribes, the first element is you decide if the documents:

relate to the administrative task carried out by or within the registry of the court or tribunal, or the Office of the Official Secretary –

So you have already sought to define a question of administrative matters by building the word “administrative” into a test that is designed to guide you.  What the appellant means at that point by “administrative” as opposed to other tasks is not fleshed out in its test.  Then it goes on to say administrative tasks:

to support or assist the exercise of the powers or the discharge of the functions of the court or tribunal or the Governor‑General –

Now, in a context where the primary function of the Official Secretary is to assist and support, it would appear the appellant is saying, in effect, prima facie we can probably catch most documents of the Official Secretary because what he does is to support.  The next thing your Honours will observe about it is that it has assimilated the sorts of support which the Registry of the Court provides with the support which the Office of the Official Secretary provides, when as I have indicated they may be very different in character, related in part to the different function performed by the body that is served.  If you get through that hurdle, you tick the box and say this is prima facie relating to an administrative matter, you then apply a proviso, which is you ask whether the document does or does not disclose the decision‑making process in a particular matter.

So you have eked out this proviso even though you do not see anything like this proviso in the Act.  You have the problem of when the decision‑making process starts or finishes, you have the elision between judicial power and the very different functions of a variety of nature that the Governor‑General may perform.  You then narrow it down to a particular matter or context.  So if the Governor‑General makes a note for herself about how she wishes to allocate her time in general over 2014 between various community engagements, that does not come within the proviso.  It is fairly clear for that variety of reasons that the convoluted approached suggested by the appellant departs substantially from the Act.  Unless your Honours have questions, they are our submissions.

FRENCH CJ:   Thank you.  Yes, Mr Merkel.

MR MERKEL:   Can I go to the heart of the difference between us and can I ask your Honours to stay with paragraph 2 and paragraph 3 of our reply?  Our learned friend, in his submissions, and he does not say we have unfairly set them out in paragraph 2(a) and (b) goes actually much further than the Full Court.  First of all, he restricts the operation of 6A and the other two sections to relating solely to the management and administration of the Registry and we would say or other office.  Solely to the management of administration would exclude the very matters your Honour the Chief Justice put to my learned friend, how effectively is the office managing the function of assessing and reviewing the nomination applications, its management and administration of the office, not its functions.

So the obvious issues that your Honour put to my learned friend would have to say no, they fall outside it.  How is the office managing the function of administrating the Order of Australia entirely outside it, but just in case something slipped inside it in the exclusion, he does not say, do not relate to a substantive matter, as the Administrative Appeals Tribunal said and as the Full Court said, but do not relate to their functions of assisting the relevant court or tribunal or the Governor‑General.

Now, we say that that narrows the operation of the meaning of the words “documents of an administrative nature” to its narrowest possible operation without my learned friend having identified the public interest that is sought to be protected by such a narrow approach.  He then, as he concluded, our learned friend criticised our formulation which, we say, was an unfair criticism because what we recognise in that formulation is a grey area. 

Prima facie, it relates to the administrative tasks because non‑administrative tasks would not be covered in matters of an administrative nature to support or assist the exercise of the powers or discharge of the functions but we then recognise the public interest which my learned friend, in the end, agreed is attracted to the Governor‑General of impartiality and independence. 

We say that if it discloses the decision‑making process, not in deciding to make a nomination but in the exercise of any power, discharge of any duty or function of the court, tribunal, then it is what we said relating to a non‑administrative function or a non‑administrative matter as we outlined in our submissions to your Honours.  So we give the section an operation that seeks to not overreach, give it no more effect than that which is necessary and does not impinge upon the public interest which it protects.

Now, our learned friend has not confronted the problem of, even if he narrowed his formulation to “it must not relate to a substantive function”, that effectively excludes from the operation of the section most of the meaningful information that the Senate Committee and the Senate speeches thought should be available such as:  how effectively are things being done in the registry; how is the registry managing; what is it managing?  It is managing the business of the court or it is managing the business and activities of the Governor‑General or the relevant tribunal.  So we say that our learned friend’s submissions do not confront or justify the narrow operation that he gives.

For the first time he also sought to present an argument which if correct would have significant ramifications for the operation of this Act and that is that the Governor‑General is outside of the objects of section 3. With respect, that seems a startling observation. Government of the Commonwealth in fact with the same capitals as a function of the Governor‑General under section 4 of the Constitution, her function is administering the Government of the Commonwealth.

Section 61, and with the Governor‑General at the head of the Executive Government under Chapter II, could hardly be said to be outside Government of the Commonwealth of Australia, but even more so if the Governor‑General were said to be outside the objects of the Act there would be no basis for including the Official Secretary within the operation of the Act, particularly given our learned friend’s proximity between the Official Secretary and the Governor‑General.

The third fundamental error we would say occurs in our learned friend’s submissions is he in his written submissions and again in his oral argument he has conflated the procedural manual with documents created by reason of the procedural manual.  We accept documents created by reference to the procedural manual may well be regarded as forming part of the decision‑making process in a particular matter or context.  But the procedural manual itself, in the very passages he took your Honours to, contains template letters, standard procedures, suggestions about how information should be gathered. 

If on a review of the manual it turned out, in an indirect way such as occurred in Herijanto, that the passages disclosed part of the decision‑making process in some unusual way that one would not expect, then that would not form part of the document relating to a matter of administrative nature, but the very nature of the document itself, we would submit, does not of its description disclose part of the decision‑making process involved in the Order of Australia in respect of any particular nomination.

My learned friend also sought to say that somehow the case has been put differently on behalf of Mrs Kline.  That is true, but the one thing that has been constant before the AAT and the Full Court is whatever case was put it was rejected on the basis that administrative matter excludes anything related to the substantive powers.  My learned friend said that to try and justify their Honours’ decision in the Full Court at paragraph 21, when their Honours were referring to “apparatus”, their Honours were really referring to the internal office activities, but we say that is not a proposition that stands any analysis.  What their Honours said at paragraph 21 is a distinction:

between the substantive powers and functions . . . and the apparatus for the exercise of that power or function, matters merely supportive of that power or function –

That must mean the whole range of activities of the Office of the Official Secretary and the employees employed there, to support the exercise and powers of those functions.

Now, staff arrangements, of course, are one part of it, but my learned friend argues that they are exhaustive of the whole category and we say that the error which we identified was an error made by their Honours, with respect, and was an error which our learned friend has repeated. 

My learned friend also sought to suggest that the review documents should not trouble your Honour because of the Bonsey report.  With respect, the short answer to that is that no finding has been made nor could it be made because at page 8 of the appeal book the Deputy Official Secretary said at line 10 that when documents did not exist that was the response for 1(b) and 2(c), but in respect of the other categories, which include category 4, no documents relating to matters of an administrative nature, then all the documents were bundled up and have not been looked at since.

So, we would say, with respect, that my learned friend’s suggestion that there is no formal appeal process, even if it be correct, is not an answer to whether there is some review process, for example, in cases of maladministration, which we would say is another example of going very much to the heart of what the Senate and the debates were about.  Is there maladministration of the honour system and, if so, is there any process for dealing with it? 

Now, not maladministration in respect of Mrs Kline’s nomination, but maladministration of the process, and also in respect of her particular nomination, section 11(2) makes it quite clear that the purpose - sorry, I think I have the wrong section.  Sorry, section 11(2) - section 11(2) provides:

a person’s right of access is not affected by:

(a)       any reasons the person gives for seeking access –

So that it is quite wrong to say by my learned friend that the appellant’s request because of dissatisfaction with the outcome of her process somehow means she is just wanting to get documents concerning her nomination.  What she is seeking are the documents in the request and, relevantly, for this argument, procedural manuals do not bear upon her nomination, review processes which do not bear on her nomination and file notes that would, which may or may not fall within the relevant category.

My learned friend also put in argument that to protect the Governor‑General’s confidentiality and independence, the proximity of relationship between the Official Secretary and the Governor‑General should be recognised and the Official Secretary would give advice from time to time to the Governor‑General.  If that be so, if it be advice of the kind that section 8A deals with such as a recommendation, then it is required to be made to be published.  Section 8A about operational information is information held by the Official Secretary to assist the Official Secretary to perform the agency’s functions in making decisions or recommendations affecting members of the public. 

If the procedural manual took one step, and we do not know that it does or does not, we assume it does not but if it took the step of asking for the Official Secretary to make a recommendation in respect of an application, then that would have to be published under section 8A. It would be purely fortuitous on my learned friend’s argument whether such a recommendation might or might not be made. It is certainly not outside the purview of the Constitution for it to require that.

The point of that is that it makes it a very odd result that if there was a recommendation, it is required to be published but if there is not a recommendation it is able to be outside the Act altogether.  We say that it all comes from the very narrow and strained reading that our learned friends seek to give the words “matters of an administrative nature”.

On the question of breach of confidence, I should draw your Honour’s attention to what you would expect anyway, and that is that in the nomination form itself, which is at 145, the nomination is confidential.  That is at 145 in the second column at lines 11 through to 14.  One would expect and assume that referees were asked to give their references in confidence and that would fall squarely within 45, but my learned friend sought to somehow turn 45 around for breach of confidence.  Of course, the person who would have the action for breach of confidence would be the person who has been the subject of an obligation of confidence, namely, the person who provides the information and they could enforce that.

But the scheme in 45 and 47C is to avoid the very kind of arrangement that would have internal government‑created confidentiality somehow allowing for a confidential exemption in respect of deliberative processes.  We would say it would be quite outside that statutory scheme for the agency to have a right of confidence in respect of information and that would undermine the function of those sections. 

My learned friend also criticised, we would say, with respect, unfairly, our approach to sections 5 and 6 and how we applied it to 6A. We have recognised that 5 and 6 are about deliberative functions in five of the courts; that is the function that is sought to be protected. In 6 it would be the arbitral and conciliation function of the Tribunal. In 6A, of course, we accept the Governor‑General does not have those sorts of functions, but she does undertake in respect of the exercise of her powers, discharge of her functions, decision‑making processes, and our criterion in our reply has been adapted from the principle of non‑disclosure in 5 and 6 and applied to the specific circumstances of the Governor‑General for the purposes of section 6A.

We have not conflated all three, we have tried to look at what it is that is really being protected, and we took from Fingleton and MacKeigan that something that might be outside the normal judicial power or function of determining a case, or resolving a dispute, but appointing judges which might be considered administrative would lose that – would not have that characterisation for the purposes of 6A, thus our exclusion or our proviso which has the effect of making what might have been administrative not administrative a non‑administrative matter for the purposes of the Act. So we say, unlike our learned friends, we have sought to give effect to the Act’s operation and the Act’s objectives in section 3 but without unduly straining the words and the meaning or operation of sections 5, 6 and 7.

But in the end, our learned friend diminishes the purpose of those sections by essentially putting, whether it is a staplers, pens or pencils argument, that is really the information and the only information that his construction would give access to because just about everything else of any significance or meaning would relate to the substantive powers of the three bodies the subject of the sections. 

So we would say that the effect of that is to render nugatory the operation and intent of exposure.  He relies, with respect, on the amendments to the – the creation of the High Court Act.  Yes, the High Court Act did give the Court powers in respect of what might be called commercial matters, but that was necessary because that, like a corporation, was outside the normal ambit of what may be called the administration of a court.  But that was not exhaustive of the administrative functions of the Court; it was merely giving powers in respect of one particular aspect of the administrative functions.

So, to read administrative matters down as my learned friend would seek to essentially financial cost‑effective matters is to really not cope or deal with what we earlier said the real distinction drawn in the committee report and properly understood and fairly understood the parliamentary speeches and, more importantly, the drafting and context of these sections is a distinction between administrative and non‑administrative functions and matters and if that be the underlying basis for the Act’s operation, reading it down as my learned friend would do would totally eliminate that analysis. 

So, for those reasons, we submit the appeal should be allowed and the construction which we put forward should be preferred to that put forward by our learned friend.  If the Court pleases.

FRENCH CJ:   Thank you, Mr Merkel.  The Court will reserve its decision.  The Court adjourns until 10.15 tomorrow morning.

AT 4.08 PM THE MATTER WAS ADJOURNED