Kline v Official Secretary to the Governor General and Anor

[2013] HCATrans 180

[2013] HCATrans 180

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B10 of 2013

B e t w e e n -

KAREN KLINE

Applicant

and

OFFICIAL SECRETARY TO THE GOVERNOR GENERAL

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for special leave to appeal

FRENCH CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 AUGUST 2013, AT 11.06 AM

Copyright in the High Court of Australia

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

MR P.J. HANKS, QC:   Your Honours, I appear with MS N. KIDSON, for the first respondent.  (instructed by Australian Government Solicitor)

FRENCH CJ:   We have a submitting appearance for the second.  Yes, Mr Merkel.

MR MERKEL: If the Court pleases. The question arising in this matter is whether the documents described in subparagraphs 3, 4 and 5 at paragraph 12 of the Full Court’s reasons, which are at application book 34, are capable of being characterised as documents that relate to matters of an administrative nature for the purpose of section 6A of the Commonwealth FOI Act. The Full Court’s negative response to that question is explained at paragraphs 21 to 22 of the reasons, which is at page 37 of the application book, but I can take your Honours to those paragraphs because they contain the nub of the reasoning of the court. The court’s reasoning involved three steps. The first is that the court in paragraph 21 drew a distinction:

between the substantive powers and functions of the Governor‑General, on the one hand, and the apparatus for the exercise of that power or function, matters merely supportive of that power or function –

If I can just step there, that definition would clearly capture the procedural manuals and the internal review structures and, in fact, there is a great similarity to what are defined in the Act as operational documents in section 8A.  So just stopping there, if that were the dichotomy, the documents, the subject of the request, would fall within that analysis. 

The second step was the one that led to the error that we complain of.  The apparatus was then asserted in paragraph 22 to be limited to documents that do not relate to “substantive power or function”.  The third step was that as the procedural manuals relate to a “substantive power or function” they cannot be characterised as “relating to matters of an administrative nature”.

We say, with respect to their Honours, the Full Court was in error in imposing the limitation in step two, bearing in mind the limitation was based upon a relationship, that is, a connection, between documents of an administrative character and substantive power. We make the initial observation that given the role of the Governor‑General under the Constitution and under statute almost every activity in the Governor‑General’s Office will relate to a power or function of the Governor‑General, so the exclusion effectively reads out of the FOI Act, access to any meaningful information. We say that there are a number of criticisms you would make of the reasoning of the Full Court ‑ ‑ ‑

FRENCH CJ:   Just a minute.

GAGELER J:   I am sorry, Mr Merkel.  On the Full Court’s view, what sort of documents would fall within the description of matters of an administrative nature?

MR MERKEL: They set it out at 21, “staffing arrangements”, “costs”, “statistics”, matters said to be unrelated to any substantive power, but procedural manual, which is really an indication of how the honours system is administered, because it relates to a substantive matter or a “power or function” as excluded. Their examples given, of course, they almost go to what we would call the pencil sharpener and staple point, the only information available under section 6A, and we say by parity of reasoning in sections 5 and 6 for courts and the prescribed tribunals would be information unrelated to the administration of the activities of the office in any meaningful sense.

There are a number of criticisms we make of the Full Court’s reasoning. We say, firstly, there is no support in the text or context for the dichotomy between substantive powers and an apparatus that supports them but does not relate to those powers. The text does not attract that distinction and there is nothing in the context that does. More importantly, we say no public interest is served by section 6A that was identified by the court would support or justify that dichotomy.

Can I take your Honours to page 39?  Their Honours at paragraph 24 at page 38 drew only a faint analogy with the decision in Bienstein which related to these same words in section 5 relating to the courts and then commented at the top of 39:

the same observation applies to s 6A –

and then their Honours said –

the exception in s 6A is referable to a different and distinct public interest –

but their Honours never identified what that public interest was.  If there was a public interest identified that would justify the reading down of the broad words “document relates to matters of an administrative nature” then one could understand that proper construction principles would read those words down to exclude matters that relate to a substantive power, but there is none.

We say it is clear that the public interest served by section 6A is the same interest served by sections 5 and 6 identified in the second reading speech and in the early committee report, which is not to intrude upon the independence of courts and tribunals. We say by the same structure and identical words used in section 6A the competing public interest to those set out in section 3 of the FOI Act is not to intrude on the independence of the exercise by the Governor‑General of her powers and functions in a particular context or in a particular matter.

Now, we say that identifies what we say is the competing interest, but neither our learned friends nor the court identified what was the “different and distinct” interest that could justify a reading down of the words “matters of an administrative nature”.  We say that to approach the section in the way we have in our submissions is to accept the competing public interests of openness, accountability and responsibility, as expressed in section 3, and also of not intruding on the independence of the exercise of the Governor‑General’s functions and those assisting the Governor‑General.  We say that that draws the balance, consistent with proper legislative construction principles, and gives effect to both interests.

GAGELER J:   So the distinction you draw, as I understand it, is between what is operational and what is deliberative.  Is that it?

MR MERKEL:   We did in our submissions, your Honour, but on reflection “deliberative” is too narrow.  The distinction we actually draw is between the exercise by the Governor‑General of her powers and functions in a particular matter or context, which the Full Court referred to as substantive, but we say it is in a particular matter or context and I will articulate that in a moment, and the administrative support processes, the general processes, that go to facilitate the exercise of those powers, so that the procedural manual, internal review processes for decision making are all part of the apparatus or the support structure unrelated to the exercise of a power in a particular matter or context.

We say that would fairly capture what is intended and normally within the ordinary meaning of the words “document relates to matters of an administrative nature”. It is interesting in section 6A one picks up those sort of documents as consistent with the FOI Act’s objectives. We say that access to those documents on no reasonable analysis would intrude on the independence of the decision‑making function in a particular context or matter.

We relied on her Honour Justice Gaudron in the two Herijanto Cases where her Honour analysed the nature of the judicial immunity which was given to the RRT and its administrative decision processes as essentially founded in doctrines of independence of the judiciary, so you could not get discovery as to any aspect of the decision‑making process in a particular case.

We say likewise here, the public policy served by not intruding on the independence of the Governor‑General’s powers is not to get access through the FOI Act to the documents that disclose the decision‑making process in any particular matter or context.

GAGELER J:   The language of a particular matter is peculiarly apt to judicial determinations and to judicial decision making.  How do you apply that language to the processes of decision making by the Governor‑General?

MR MERKEL:   We do not look at matter in terms of resolving a controversy.  We say that the Governor‑General exercises her powers, bearing in mind they start with section 4 of the Constitution of administering the Government of the Commonwealth, and then into Chapter II and into specific legislation, where she is given functions and powers.  So we say the discharge of her functions or powers in a particular matter, namely, subject matter or context will fairly capture everything she does in the exercise of her powers, but she will also have what was referred to in section 8A as operational documents which are unrelated to how she might exercise her power or discharge a function in a particular instance.

So it is in the particular instance that we say is protected, but the overall objective of sections 5, 6 and 6A is to facilitate the public’s right to know how such bodies are administered other than in a particular instance, and we say that the construction we contend for gives effect to that competing objective.  The Full Court’s construction, with respect, effectively renders nugatory access to the FOI Act. 

We say that it really restricts access and it is a matter of importance because it covers not just the Governor‑General but the same reasoning must extend to prescribed tribunals and courts.  It effectively prevents this fundamental underlying objective of the sections, which is to give access to how these powers are administered in a general sense, unrelated to a particular matter.  So we say that the Full Court’s approach ‑ ‑ ‑

FRENCH CJ:   Mr Merkel, perhaps we would be assisted by hearing from Mr Hanks now.

MR MERKEL:   If your Honours please.

MR HANKS: Your Honours, our friends advance a particular construction for the phrase that is used in section 6A, “administrative matters”, which they say means pertaining to the management of public affairs or the exercise of government duties. Now, if that construction were adopted it would extend to every aspect of the functions of the Governor‑General, which is a point that was recognised by the tribunal. Your Honours will see that in the application book at page 15, about line 16. The Tribunal recognised that that approach would have a far too sweeping constraining effect on the specific exemptions we have in section 6A.

The obvious purpose of section 6A is to mark out a limited class of documents of the Official Secretary that are to be subject to the Act. It is a constraining provision. The meaning the Full Court attributed to “administrative” is entirely consistent with another of the dictionary definitions ‑ and we have drawn attention to this, I believe, in our written submissions – pertaining to the management or direction of an office or the management of affairs; it pays regard to the context in which the words are used.

So that it distinguishes between the management of the institution itself, and here that would be the management of the office for which the Official Secretary is responsible, the Official Secretary constitutes an office under section 6 of the Governor‑General Act.  So it distinguishes between the management of that office, which is essentially action that merely supports the performance of substantive functions by others, in particular by the Governor‑General on the one hand, and the performance of those substantive functions.

GAGELER J:   Mr Hanks, do you accept that Bienstein was correctly decided?

MR HANKS:   No, we do not.  We do not have to do that, your Honour, and we are not here to defend what Justice Gray decided in Bienstein.

GAGELER J:   Well, if you accept Bienstein and you accept the outcome in this case do you not have exactly the same words in two sections of the one Act being interpreted in different ways?

MR HANKS:   What I said to your Honour was that we do not have to defend Bienstein.  It is our submission that the way the Full Court dealt with the relevant phrase here, in the context of the Office of the Official Secretary rather than in the context of a court or a tribunal, was entirely correct.  There may be some tension between the way in which they dealt with it, compared to how Justice Gray analysed the similar language in section 5.

GAGELER J:   It was identical language, was it not?

MR HANKS:   Yes, indeed, but as I said, your Honour, there may be some tension between the two.  Undoubtedly, the Tribunal had – as perhaps it thought it was bound to – the Tribunal in this case had regard to what Justice Gray decided in Bienstein and saw that as quite important, but it is clear from a reading of the reasons of the Full Court that they were less impressed with the reasoning in Bienstein.

Now, it is true, as your Honour and our friends pointed out, we have essentially the same language used in 5, 6 and 6A, but the common features of those three provisions, in our submission, do not support the construction that our friends advance, the construction that what is not caught by the exemption is documents recording operational information, and what is protected is documents that record deliberative information relating to the exercise of powers in a particular context.

FRENCH CJ:   I think there has been a bit of backsliding from that, has there not, in what Mr Merkel put to us earlier?

MR HANKS: That may be true, your Honour, but I wanted simply to elaborate what it is that these three provisions are focused on. Each of them draws a distinction between an officeholder, on the one hand, and persons who carry out activities, support those officeholders. So in section 5 the distinction is between holders of judicial office, on the one hand – now they are expressly placed outside a class of prescribed authority by paragraph (b) of subsection (1) and therefore they are not subject to the section 11 right of access under this Act. That is one group, the other group is the registry staff, they are covered by section 5(1)(c). You get a similar distinction drawn in section 6 between holders of office but in a tribunal and the registry and staff.

In section 6A the distinction is not as explicit as in those two provisions, 5 and 6, but there is a necessary and implicit distinction drawn between the Governor‑General, on the one hand – the Governor‑General, of course, is not a prescribed authority, cannot be a prescribed authority under this Act, and is therefore not subject to any of the rights of access or any of the obligations that are imposed on agencies under the Act. That is one side of the distinction that is drawn in section 6A.

The other side of the distinction is the Official Secretary, who is prescribed authority because the Official Secretary holds an office established by the Governor‑General Act.  Now, that distinction, it is reflected in each of these provisions, between the officeholder and those whose function it is to support the officeholder, we say entirely supports the analysis and the proposition that the Full Court advanced. 

There is no anomaly, in our submission, in a construction of section 6A that would exclude the public having a right to request access to documents that relate to the substantive powers and functions of the Governor‑General, and that is essentially how the Full Court articulated the operation of section 6A.

FRENCH CJ:   If both constructions are arguably open why should one take the more restrictive?

MR HANKS: I will come to this perhaps almost immediately, your Honour. What we have here is ‑ to deal with a point that my friend, Mr Merkel, raised ‑ the particular exemption, as articulated in section 6A, this deliberately chosen limitation, is one that strikes a balance between competing public interests. It does serve a public interest, and the public interest that it serves is the interest in preserving confidentiality in the deliberations of the Crown as represented by the Governor‑General. It strikes a balance between that particular interest and the interest in access to information.

GAGELER J:   Did you mean to use the word “deliberations”?  That is exactly the word Mr Merkel uses.

MR HANKS:   Deliberations and functions, your Honour, yes; what the Governor‑General does.  Now, your Honours will have noticed that the Full Court drew attention to what was earlier said in Loughnan v Altman.  If your Honours go to page 38 of the application book, paragraph 26, there is a quotation from Loughnan v Altman which includes the passage:

The exclusion of the application of the Act to a request for access to a document of a court unless the document relates to matters of an administrative nature, read in the light of the stated object in s 3, reflects the view that an exception or exemption is necessary in such a case for the protection of an essential public interest.0

That was then followed, as our friend pointed out, at the top of the following page by the statement that –

the same observation applies to s 6A –

even though it has a different history, and it is –

referable to a different and distinct public interest.

Our friends complain that the public interest is not identified but, in our submission, it is obvious enough that it is a public interest that in some other context is reflected in public interest immunity.  What we are concerned with here is the councils of the Crown and the interest in preserving confidentiality in them.  That is the interest which this particular exemption in 6A serves.

Now, if that is the case, if it is true that 6A does articulate a balance between competing public interests then, as the Full Court pointed out, the – and this is on page 36 of the application book, your Honours, at about line 30 on page 36 – here, quoting what the former Chief Justice, Justice Gleeson said in Carr v Western Australia, the general rule of interpretation which you approach the construction of a provision in a way that would promote the object of the Act:

may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act.

That is entirely apposite here.  We have a provision that does strike a balance, and for that reason Justice French’s question to me, possibly a rhetorical question, is, with respect, not likely to be of assistance.  We need to construe – we need to understand what is the purpose of this particular provision without reading it in light of the articulated purposes of the Act.  The purpose of this provision is to create an immunity from the Act and to do so to serve a particular public interest.

GAGELER J:   How do you articulate that public interest?

MR HANKS:   Public interest in maintaining the confidentiality of the functions and the councils of the Crown.  That is how we would articulate it, your Honour.

FRENCH CJ:   Extending to the procedures which they adopt?

MR HANKS:   Yes, your Honour, indeed.  Now, there are entirely sensible reasons why you would extend it that far; if those procedures which they adopt are designed to ensure the integrity of decisions that are made within the Office of the Governor‑General, and their confidentiality is valued in order to avoid manipulation – one can speculate about matters of that sort, but there is a value in maintaining that confidentiality, and extending the confidentiality that far.

Now, our friends referred this morning to what Geoffrey Sawer used to describe as the horrible consequences that would flow from the construction that the Full Court adopted, namely, that most, if not all, documents of the Official Secretary would have some connection to the substantive powers or functions of the Governor‑General. 

Now, in our submission, there is no inherent difficulty in adopting a construction of section 6A that would have that effect. The purpose of section 6A is to provide that only a limited class of documents are to be amenable to requests for access under the Act, and given the nature of the public interest, which we say is reflected in the exclusion, one would expect that the number of documents protected from access would be substantial.

FRENCH CJ:   The thrust of all of this is insufficient prospects of success, is it?

MR HANKS:   Yes, it is, your Honour; that is right.

FRENCH CJ:   Not that it is unimportant?

MR HANKS:   In the scheme of things, your Honour, it does not rank very highly in importance.  It is simply a matter that goes to the ‑ ‑ ‑

FRENCH CJ:   We are not just talking about the FOI Act here, are we ‑ I mean the Australian honours system here?

MR HANKS:   That is right.  We are talking about that indirectly.

FRENCH CJ:   There is a range of functions of the Governor‑General which would be affected by the scope of the term “matters of an administrative nature”?

MR HANKS:   That is right, your Honour, of course, and it is a matter of ‑ ‑ ‑

FRENCH CJ:   Executive Council.

MR HANKS:   Obviously, it is a matter of some significance for the Office of the Governor‑General and the Office of the Official Secretary that this particular exclusion from the operation of the Act be read in a way that protects the confidentiality of those functions, as we have said.

GAGELER J:   Mr Hanks, is it common ground that none of the other numerous exclusions in the Act would be applicable to these documents?

MR HANKS:   Now, I am sorry, your Honour ‑ is it common ground that none of the other exemptions in the Act would ‑ ‑ ‑

GAGELER J:   Yes, are applicable – would be applicable to the documents the subject of the request?

MR HANKS: I do not think anyone has thought about that, your Honour. There has been no deliberation by any decision‑maker as to whether there is, indeed, a right of access to these documents, or whether one of the exemptions would apply. The only point that was decided by the Official Secretary as the primary decision‑maker was the section 6A point. The only point that was decided by the Information Commissioner was the same point, and the only point decided by the Tribunal, all the decision‑makers of fact are focused only on that one question. No one has turned their minds as to whether any exemption is applicable. Now, your Honours, I wanted to say something very briefly ‑ ‑ ‑

FRENCH CJ:   No, go on, Mr Hanks; yes.

MR HANKS:   Sorry, your Honours.  I just noticed that I have been allowed another two minutes.

FRENCH CJ:   Yes, we were not going to shut you off.

MR HANKS: I wanted to say something very briefly about the 2010 amendments which were introduced, effectively, in May of 2011 – an obligation on agencies to publish operational information. Your Honours will have noticed that it was something that was picked up in our friend’s written submissions at page 72 of the application book, and our friend has identified some anomaly between the construction the Full Court adopted of section 6A, on the one hand, and the obligation on agencies to publish operational information, which is defined in section 8A of the Act.

Of course, that argument, we say, is misplaced because if we are talking about the work of the Council of the Order of Australia, the council is not a prescribed authority, it is not an agency.  The Governor‑General is not a prescribed authority and is not an agency.  Although the Official Secretary is a prescribed authority, the Official Secretary has no involvement in making decisions or recommendations of the kind with which the council and the Governor‑General deal.  The council has a closely defined membership which does not include the Official Secretary.

So insofar as the reasoning of the Full Court would exclude from access under the Act documents that might be loosely described as operational information if section 8A and section 8 were applicable, it is irrelevant because neither the council nor the Governor‑General nor the

Official Secretary in relation to the relevant documents is subject to the obligation imposed by section 8 to publish operational information.  If your Honours please.

FRENCH CJ:   Thank you, Mr Hanks.  Mr Merkel, could I just ask you about the status of ground 2(d) of your draft notice of appeal, page 64?

MR MERKEL:   Sorry, what page is it in the application book, your Honour?

FRENCH CJ:   Page 64.  It is sort of a Northern Land Council question, I think.

MR MERKEL:   Yes, your Honour.

FRENCH CJ:   Is there any submission in relation to that?

MR MERKEL:   I think it really is consequential upon the others, your Honour.  In other words, because of the definition that we put forward, or the construction we put forward, it is necessary to identify the documents, but it is not a separate and independent ground from the construction ground.  Because of the construction ground it is said they are not characterised as relating to matters of an administrative nature.  There was no need to look at the documents, but because we say the contrary argument is that they are properly characterised as matters of an administrative nature it is necessary to look at the documents then to determine whether they are or are not within that category.

FRENCH CJ:   Well, can I ask whether your argument can be put without reference to (d)?

MR MERKEL:   Yes, your Honour, because it is purely a question of construction.

GAGELER J:   You are not asking us to look at the documents?

MR MERKEL:   No, no.

FRENCH CJ:   You are not saying that a court apprised of – or a tribunal apprised of a challenge of this character would have to examine the documents?

MR MERKEL:   Your Honour, what we are saying is that if the ‑ ‑ ‑

FRENCH CJ:   If the broad category were administrative, I suppose.

MR MERKEL: Yes, what we are saying, your Honour, is that on the Full Court’s construction there is no need to look at the documents because the category they fall within is not capable of being characterised as falling within the exception in section 6A. If our argument is correct, the matter would be remitted to the Tribunal to then look at the documents. It is not an independent leg. It is a consequence of our argument succeeding.

FRENCH CJ:   Yes, all right, thank you.

There will be a grant of leave in relation to grounds 2(a) to (c) in the draft notice of appeal.  It will take less than a day, I imagine, Mr Merkel?

MR MERKEL:   Yes, your Honour.

FRENCH CJ:   Mr Hanks?

MR HANKS:   I believe so, your Honour.

FRENCH CJ:   Yes, all right.  There is a timetable for submissions.

MR MERKEL:   If your Honour pleases.

AT 11.41 AM THE MATTER WAS CONCLUDED