FEDERAL COURT OF AUSTRALIA
PRINCIPAL REGISTRY
LEVEL 16
LAW COURTS BUILDING
QUEENS SQUARE
SYDNEY NSW 2000
4 November 2021
Shaun
Right to Know
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Sir/Madam,
Request under the Freedom of Information Act
I acknowledge receipt of your email to the Federal Court of Australia (the
Court), dated 29
October 2021, seeking access to documents under the
Freedom of Information Act 1982 (Cth)
(
FOI Act). Specifically, you have requested the following:
i require the internal procedure, directive(s), policy, (or other documents) that describe how a
qualified employee, PUBLIC SERVANT (or other) of the said Federal Court of Australia handle the
following:
1. The Federal Court of Australia is a Court of Law and a Court of Record and a common law Court
and available to any PERSON (or other legal entity), man or woman. There is no publicly available
procedure on how a qualified employee, PUBLIC SERVANT (or other) must handle a claim by a man
or woman that wishes to prosecute said claim in common law at the Federal Court of Australia venue.
I require the Federal Court of Australia documents that describe the procedure, directive, policy (or
other) that a qualified employee, PUBLIC SERVANT (or other) of said Court depends on when a man
or woman wishes to prosecute a claim in common law at the said Court venue.
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
Freedom of Information Act 1982 (Cth) (
FOI Act).
Decision
I have decided to refuse your request for documents on the basis that none of the documents
are accessible under the FOI Act. The FOI Act does not apply to a request for access to a
document of the Federal Court “
unless the document relates to matters of an administrative
nature” (subsection 5(1)), nor does the FOI Act apply to any request for material that is
otherwise publicly available.
I have taken the following into account in making my decision:
link to page 2 link to page 2 link to page 2 link to page 2 link to page 2 link to page 2
• your request;
• the FOI Act and relevant case law; and
• the FOI Guidelines issued by the Office of the Australian Information Commissioner.
Reasons for Decision
Section 5(1) of the FOI Act and “matters of an administrative nature”
Subsection 5(1) of the FOI Act relevantly provides:
… 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 phrase “matters of an administrative nature” in the context of the operation of section 5 of
the FOI Act has been considered at length by the High Court of Australia in
Kline v Official
Secretary to the Governor General of Australia & Anor.
1 In the joint judgment dismissing the
appeal, Chief Justice French 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 that:
…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.
Relevantly, 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
In its reasoning, the High Court held to be erroneous the decision of
Bienstein v Family Court
of Australia.
6 Bienstein suggested 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
1 (2013) 249 CLR 645; [2013] HCA 52.
2 Ibid,
at [19] (French CJ, Crennan, Kiefel and Bell JJ).
3 Ibid, at [41] (French CJ, Crennan, Kiefel and Bell JJ).
4 Ibid, at [13] (French CJ, Crennan, Kiefel and Bell JJ).
5 Ibid, at [47] (French CJ, Crennan, Kiefel and Bell JJ).
6 (2008) 170 FCR 382.
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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
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 seek are documents in relation to any “claim in common law at the Federal
Court of Australia venue”, and documents the Court and its officers depend on when a person
“wishes to prosecute a claim in common law”. The documents sought relate to legal
proceedings, and therefore the Court’s exercise of its substantive powers and functions or tasks
that are referable to the Court’s exercise of judicial powers and functions. The documents do
not relate to the management and administration of registry and office resources. Accordingly,
none of the documents you have requested relate to “matters of an administrative nature” as
that compound of words has been interpreted by the High Court, and therefore the FOI Act
does not apply to them.
Material that is otherwise publicly available
Although the FOI Act provides a legally enforceable right to obtain access to “
a document of
an agency” (paragraph 11(1)(a)), under the FOI Act, a document of an agency does not include
“
material maintained for reference purposes that is otherwise publicly available” (paragraph
4(1)(d)).
Your request for internal documents of the Court appears to be rooted in the belief that “[t]here
is no publicly available procedure” on how the Court and its officers “must handle a claim by
a man or woman that wishes to prosecute said claim”. However, the Court’s website contains
a range of practice materials and other information that guide its approach to dealing with
claims that are filed in the Court. For example, the Court’s
Central Practice Note: National
Court Framework and Case Management (
CPN-1) sets out the fundamental principles
concerning the operation of the Court, including the individual docket system, national
allocation protocols, and key principles of case management procedure. CPN-1 is accessible
via the following link:
https://www.fedcourt.gov.au/law-and-practice/practice-
documents/practice-notes/cpn-1.
7
Kline v Official Secretary to the Governor General of Australia & Anor (2013) 249 CLR
645; [2013] HCA 52, at [51] (French CJ, Crennan, Kiefel and Bell JJ).
8 Ibid, at [51] (French CJ, Crennan, Kiefel and Bell JJ).
9 Ibid, at [75]-[76] (Gageler J).
3
To the extent that the materials you have requested are already publicly available, those
materials are captured by paragraph 4(1)(d). Such materials fall outside the definition of a
“document” under the FOI Act and therefore must be refused.
Charges
You have not been charged for the processing of your request.
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 Federal Court for an internal
review of my decision. The internal review application must be made within 30 days of the
date of this letter.
Where possible please attach reasons why you believe review of the decision is necessary. The
internal review will be carried out by another officer within 30 days.
Information Commissioner review
Under section 54L of the FOI Act, you may apply to the Australia Information Commissioner
to review my decision. An application for review by the Information Commissioner must be
made in writing within 60 days of the date of this letter and be lodged in one of the following
ways:
online:
https://forms.business.gov.au/aba/oaic/foi-review-/
ema
il: xxxxxxxxx@xxxx.xxx.xx
post: GPO Box 2999, Canberra ACT 2601
in person: Level 3, 175 Pitt Street, Sydney NSW
More information about the Information Commissioner review is available on the Officer of
the Australian Information Commissioner website. Go t
o https://www.oaic.gov.au/freedom-
of-information/reviews-and-complaints/information-commissioner-review/.
Yours sincerely,
Rohan Muscat
National Registrar
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