FEDERAL COURT OF AUSTRALIA
HARRY GIBBS COMMONWEALTH LAW COURTS BUILDING
119 NORTH QUAY
BRISBANE QLD 4000
11 August 2023
Mr Bob Neil
Right to Know
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Neil,
Request under the Freedom of Information Act
I refer to your email to the Federal Court of Australia (Court) of 12 July 2023 requesting
access to documents under the
Freedom of Information Act 1982 (Cth) (FOI Act).
Specifically, you have requested the following:
I seek access to documents under the Freedom of Information Act 1982 (Cth).
Please provide access to documents which constitute the records of the Federal Court
Committee relating to Self-Represented Litigants (howsoever named or described), including
(without limitation) the committee agenda, minutes, and any reports, dating from inception of
the Committee to the present date.
Authorised decision-maker
I am authorised under section 23 of the FOI Act to make decisions on behalf of the Court in
relation to requests made under the FOI Act.
Decision
I have decided that pursuant to section 5(1) of the FOI Act to refuse your FOI request for the
reason that the FOI Act does not apply to your request due to the operation of that section.
Under section 5(1) of the FOI Act, it is only open to you to make a request for documents that
relate to “
matters of an administrative nature”. The documents you have requested are not
documents that relate to “
matters of an administrative nature”. Rather, the documents you
have requested directly relate to the Self Represented Litigants Committee (Committee). This
Committee was comprised of mainly judicial officers whose functions and responsibilities
were to advise the Chief Justice and Judges on issues arising in relation to litigation
conducted by persons who were self-represented.
link to page 2
Pursuant to section 5(1)(b) of the FOI Act, judicial officers are specifically excluded from the
operation of the FOI Act. Therefore, the right to access documents under the FOI Act does
not extend to documents held by judicial officers. To the extent that judicial officers are in
possession of any of the documents you have requested, access must be refused to those
documents.
I have determined that a valid request under the FOI Act has not been made as:
• it is only open for you to make a request for documents under the FOI Act that relate
to
“matters of an administrative nature”; and
• the FOI Act does not apply to judicial officers.
Alternatively, if a valid request has been made, I consider that it does not fall within the
limited application of the FOI Act to the Court.
I have taken the following into account in making my decision:
• the terms of your request;
• the relevant provisions of the FOI Act and case law considering those provisions;
• the
Freedom of Information (Charges) Regulations 2019; and
• the FOI Guidelines issued by the Office of the Australian Information Commissioner
(FOI Guidelines).
Reasons for Decision
Section 5(1) of the FOI Act – Act to apply to courts in respect of administrative matters
The FOI Act has a very limited application to the Court.
1 Although the Court is a “
prescribed
authority” in accordance with subsection 5(1)(a) of the FOI Act, subsection 5(1) makes clear
that the only request that can validly be made to the Court under the FOI Act is to access a
document that relates to
“
matters of an administrative nature”.
Subsection 5(1) of the FOI Act provides as follows:
For the purposes of this Act:
(a) a court (other than a court of Norfolk Island) shall be deemed to be a prescribed
authority;
(b) the holder of a judicial office (other than a judicial office in a court of Norfolk
Island) or other office pertaining to a court (other than a court of Norfolk Island)
in his or her capacity as the holder of that office, being an office established by
the legislation establishing the court, shall be deemed not to be a prescribed
authority and shall not be included in a Department; and
(c) a registry or other office of a court (other than a court of Norfolk Island), and
the staff of such a registry or other office when acting in a capacity as members
of that staff, shall be taken as a part of the court;
1 Paragraphs 2.8 – 2.10 of the FOI Guidelines.
2
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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.
The High Court of Australia (High Court) considered the operation of section 5 of the FOI
Act and the meaning of the phrase “
matters of an administrative nature” in
Kline v Official
Secretary to the Governor General of Australia & Anor (2013) 249 CLR 645; [2013] HCA
52. In the joint judgment dismissing the appeal the Chief Justice and Justices Crennan, Kiefel
and Bell acknowledged that:
The FOI Act does not apply to any request for access to a document of either a court or a
specified tribunal, authority or body “unless the document relates to matters of an
administrative nature”.2
Further, the High Court held:
…the exception of a class of document which relates to “matters of an administrative nature”
connotes documents which concern the management and administration of office resources,
examples of which were given above. This is a common enough connotation of the epithet
“administrative”.3
The examples referred to by the High Court were a second category of assistance and support
provided to the Governor-General by the Office of the Official Secretary. That category of
support was the management and administration of office resources, such as financial and
human resources and information technology.
4 The first category, which was thereby
excluded from the management and administration of office resources, included assisting and
supporting the Governor-General’s discharge of substantive powers and functions.
As relevant, the High Court then held that:
Accordingly, the only documents which courts and specified tribunals, authorities and bodies
are obliged to open to increased public scrutiny are those documents relating to the
management and administration of registry and office resources.5
The High Court, in considering the decision of
Bienstein v Family Court of Australia,6 held
that decision to be erroneous in suggesting that even documents held by a court which related
to individual cases might be characterised as documents relating to matters of an
administrative nature, or that since some powers and functions of a judicial officer were
administrative in nature, those administrative powers and functions which were not closely
related to judicial independence would not need protection from the operation of the FOI
Act.
7
The High Court held that the reasoning in
Bienstein accorded no weight to the circumstance
that a judicial officer is not subject to the operation of the FOI Act, only a registry or office of
a court or specified tribunal is subject to the operation of the FOI Act, and then only in
respect of documents relating to administrative matters.
8
2 at [19].
3 at [41].
4 at 13].
5 at [47].
6 (2008) 170 FCR 382.
7 at [51].
8 at [51].
3
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In a separate judgment, Justice Gageler also dismissed the appeal. His Honour held that:
The distinction sought to be drawn by the appellant between documents which “relate to
administrative tasks … to support or assist the exercise of … powers or the [performance] of ….
functions”, on the one hand, and documents which answer that description but which would
“disclose the decision-making process involved in the exercise of those powers or performance
of those functions in a particular matter or context”, on the other, is too fine to be sustained.
The true distinction is more robust and more practical.
Matters which do not relate to the provision of logistical support do not become
“administrative” merely because they are in some way preparatory to an exercise of a
substantive power or to the performance of a substantive function.9
The documents you have sought are not documents that relate to
“matters of an
administrative nature” as that compound of words has been interpreted by the High Court.
They are not documents concerning the management and administration of registry and office
resources. Rather, they are documents concerning correspondence relating to a Committee
comprised mainly of judicial officers of the Federal Court of Australia. The Committee’s
objective was to advise the Chief Justice and the Judges on issues arising in relation to
litigation conducted by persons who are self-represented. The function of that Committee did
not include the management and administration of office resources, such as financial and
human resources and information technology.
The right to access documents under the FOI Act does not extend to documents held by
judicial officers in their capacity as the holder of that office. Section 4 of the FOI Act defines
“agency”, to which the right to access documents extends as
“a Department, a prescribed
authority or a Norfolk Island authority.” Pursuant to subsection 5(1)(b) of the FOI Act,
judicial officers are specifically excluded from being
“a prescribed authority” and therefore,
they are
“not … included in a Department.”
To the extent that judicial officers are in possession of any of the documents you have
requested, access must be refused to those documents also for this reason.
Since requests for access can only be made for documents relating to
“matters of an
administrative nature”, I have determined that your FOI request has not been validly made
under the FOI Act.
Alternatively, if a valid request has been made, I conclude the documents you have requested
do not relate to
“matters of an administrative nature” and, as such, cannot be accessed under
the FOI Act.
Charges
You have not been charged for the processing of your request.
9 at [75] and [76].
4
Your Review Rights
If you are dissatisfied with my decision, you may apply for internal review or to the
Information Commissioner for review of those decisions. I encourage you to seek internal
review as a first step as it may provide a more rapid resolution of your concerns.
Internal review
Under section 54 of the FOI Act, you may apply in writing to the Court for an internal review
of my decision. The internal review application must be made within thirty (30) days of the
date of this letter.
Where possible please attach reasons as to why you believe review of the decision is
necessary. The internal review will be carried out by another officer within thirty (30) days.
Information Commissioner review
Under section 54L of the FOI Act, you may apply to the Australian Information
Commissioner to review my decision. An application for review by the Information
Commissioner must be made in writing within sixty (60) days of the date of this letter and be
lodged in one of the following ways:
online:
Information Commissioner Review Application form (business.gov.au)
ema
il: xxx@xxxx.xxx.xx
post: Director of FOI Dispute Resolution, GPO Box 5218, Sydney NSW 2001
More information about the Information Commissioner review is available on the Office of
the Australian Information Commissioner (OAIC)
website
at:
https://www.oaic.gov.au/freedom-of-information/reviews-and-complaints/information-
commissioner-review/.
Complaints
If you are dissatisfied with the way the Court has handled your FOI request, you may
complain to the Information Commissioner in writing. There is no fee for making a
complaint. More information about making a complaint is available on the OAIC website,
including a link to the online complaints form which the OAIC recommends using for
complaints, a
t: https://www.oaic.gov.au/freedom-of-information/reviews-and-
complaints/make-an-foi-complaint.
Yours sincerely
B Henderson
FOI Officer
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