Customer Service
Telephone: 1300 352 000 – family law matters
Federal Circuit and Family Court of Australia
Telephone: 1300 720 980 – general federal law matters
GPO Box 9991 in your capital city
Email: xxxxxxxx.xxxxxxx@xxxxxx.xxx.xx
27 October 2023
Waldek
by email:
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Waldek
Re. Internal Review of FOI decision dated 29 September 2023
I refer to your email dated 29 September 2023, requesting an internal review of Amanda
Morris’ decision dated 29 September 2023, regarding your request for documents under the
Freedom of Information Act 1982 (Cth) (the FOI Act).
Authorised decision maker
I am authorised under s 23 of the FOI Act to make decisions on behalf of the Federal Circuit
and Family Court of Australia (Division 1) (the Court) in relation to your internal review
request.
Background
By email dated 30 August 2023, you requested the following category of documents:
Under the FOI Act 1982 I request access to all documents of an administrative nature
relating to Judge Vasta's involvement in the false imprisonment of the applicant in
Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020.
You were advised by letter dated 29 September 2023 that a valid request under the FOI Act
had not been made because the documents you requested are not documents of an
administrative nature in accordance with s 5 of the FOI Act and the High Court decision in
Kline v Official Secretary of the Governor General (2013) 249 CLR 645 (
Kline). You were
advised that in the alternative, if a valid request had been made, documents related to the
exercise of judicial functions by judicial officers are not documents of an administrative nature
and are not accessible under the FOI Act.
In your email requesting an internal review sent on 29 September 2023, you state:
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I am writing to request an internal review of Federal Circuit Court of Australia's
handling of my FOI request 'Stradford (a pseudonym) v Judge Vasta [2023] FCA
1020'.
I requested access to all documents of AN ADMINISTRATIVE NATURE relating to
Judge Vasta's involvement in the false imprisonment of the applicant in Stradford (a
pseudonym) v Judge Vasta [2023] FCA 1020.
If there are documents of an administrative nature relating to Judge Vasta's
involvement in the false imprisonment of the applicant in Stradford (a pseudonym) v
Judge Vasta [2023] FCA 1020 in the control of the Federal Circuit and Family Court
of Australia, please make a lawful decision in respect of them.
If there are no documents of an administrative nature relating to Judge Vasta's
involvement in the false imprisonment of the applicant in Stradford (a pseudonym) v
Judge Vasta [2023] FCA 1020 in the control of the Federal Circuit and Family Court
of Australia, then you must refuse to grant access pursuant to section 24A of the FOI
Act.
Yours reasons for decision have no relevance to my request.
Decision
Under s 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. Whilst you have sought documents of “an administrative
nature” the information you have requested are not documents that relate to matters of an
administrative nature. On that basis, I have decided that a valid request, pursuant to the FOI
Act, has not been made.
Alternatively, if a valid request has been made, none of the documents requested are, or relate
to, documents of an administrative nature within the meaning of s 5(1) of the FOI Act and the
decision in
Kline. As such, the documents requested may not be accessed under the FOI Act.
Alternatively, based on the limited application of the FOI Act, there are no documents of “an
administrative nature” of the description you have provided. As such, pursuant to s24A of the
FOI Act, the request for documents of an administrative nature of this kind do not exist.
In making my decision I have had regard to:
a. the terms of your initial request dated 30 August 2023;
b. the decision dated 29 September 2023;
c. your internal review request dated 29 September 2023;
d. the relevant provisions of the FOI Act and case law considering those provisions; and
e. the FOI Guidelines issued by the Office of the Australian Information Commissioner
under s 93A of the FOI Act (FOI Guidelines).
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Reasons for decision
Application of the FOI Act
The FOI Act has a restricted application to the Court (paras 2.8 – 2.10 of the FOI Guidelines).
The Court is a ‘prescribed authority’ for the purpose of the FOI Act, but the Act does not apply
to judicial officers (s 5(1) of the FOI Act and para 2.8 of the FOI Guidelines). Section 5(1) of
the FOI Act provides:
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;
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.
To be within the scope of the FOI Act, any documents held by the Court must be documents
relating to matters of an administrative nature (s 5(1) of the FOI Act).
The phrase ‘matters of an administrative nature’ was clarified by the High Court in
Kline. In
the joint judgment given by the then Chief Justice and Justices Crennan, Kiefel (as she then
was) and Bell, the phrase ‘matters of an administrative nature’ was described as documents
which concern the management and administration of office resources, such as financial and
human resources and information technology (see para [41] with examples at para [13]). That
judgment also makes it clear that, in the view of those judges, documents held by a federal
court relating to individual cases can never be characterised as documents “relating to ‘matters
of an administrative nature’” (see para [51]).
Kline was recently applied by the Australian Information Commissioner to confirm that
documents relating to individual cases are properly characterised as relating to the exercise of
the Court’s adjudicative functions, and not to ‘matters of an administrative nature’ for the
purpose of the FOI Act (
Lilo Hana von Schoeler and Federal Circuit Court of Australia [2021]
AICmr 16 at paras [16] – [18]).
The documents sought in your request concern information related to individual cases and the
exercise of judicial functions. I am satisfied that your request concerns documents of the Court
that are not documents related to matters of an administrative nature within the meaning of
section 5(1) of the FOI Act and the decision in
Kline.
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I am satisfied that there are no documents of the Court that exist within the scope your request
that come within the meaning of the phrase ‘matters of an administrative nature’ as clarified
by the High Court in
Kline.
Your Review Rights
If you are dissatisfied with my decision you may apply to the Information Commissioner for
review of the decision. An application under this section must be made in writing within 60
days of the date of this letter in one of the following ways:
• online (www.oaic.gov.au/freedom-of-information/foi-review-process)
• post (Australian Information Commissioner GPO Box 2999 Canberra ACT 2601)
• in person (Level 3, 175 Pitt Street Sydney NSW 2000)
More information about the Information Commissioner review process is available at the
Office of the Information Commissioner website a
t https://www.oaic.gov.au/freedom-of-
information/reviews-and-complaints/information-commissioner-review/
Yours sincerely
Virginia Wilson
Deputy Principal Registrar
Federal Circuit and Family Court of Australia
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