Kline v Official Secretary to the Governor General [2013] HCA 52

HIGH COURT OF AUSTRALIA

FRENCH CJ, CRENNAN, KIEFEL, BELL AND GAGELER JJ

KAREN KLINE APPELLANT

AND

OFFICIAL SECRETARY TO THE GOVERNOR GENERAL & ANOR RESPONDENTS

Kline v Official Secretary to the Governor General [2013] HCA 52 6 December 2013 B47/2013

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation

R Merkel QC with E M Nekvapil for the appellant (instructed by Bartley Cohen Solicitors)

J T Gleeson SC, Solicitor-General of the Commonwealth with N Kidson and C L Lenehan for the first respondent (instructed by Australian Government Solicitor)

Submitting appearance for the second respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Kline v Official Secretary to the Governor General

Administrative law − Freedom of information − Request for access to documents − Section 6A(1) of Freedom of Information Act 1982 (Cth) provided that documents held by Official Secretary to the Governor-General were excluded from disclosure unless they related to "matters of an administrative nature" − Whether documents relating to nomination of person to Order of Australia were excluded from disclosure by operation of s 6A(1).

Words and phrases − "matters of an administrative nature".

Freedom of Information Act 1982 (Cth), ss 5, 6, 6A.

FRENCH CJ, CRENNAN, KIEFEL AND BELL JJ. The appellant, Ms Kline, made a request under s 15 of the Freedom of Information Act 1982 (Cth) ("the FOI Act") for access to certain categories of documents held by the first respondent, the Official Secretary to the Governor‑General of the Commonwealth of Australia ("the Official Secretary"). The second respondent, the Administrative Appeals Tribunal ("the Tribunal"), filed an appearance submitting to any order the Court may make save as to costs. The documents in the request related to the Australian system of honours, the Order of Australia. They included two nomination forms for the making of an award and correspondence in relation to those nominations, criteria for making awards, working manuals, policy guidelines, and documents relating to review processes. Subsequently, the appellant expanded her request to include an additional category of documents, being "all file notes from the Secretariat" contained in the nominations, which she made in 2007 and 2009. The decision of the Official Secretary, an "agency" subject to the operation of the FOI Act, was conveyed in writing. In that communication it was stated that some of the documents requested by the appellant did not exist. In relation to the balance, it was said that "no documents relating to matters of an administrative nature" had been identified, being the only class of documents of the Official Secretary which are subject to obligations under the FOI Act. The letter also stated that the appellant would be provided with one copy of each of the two nominations she had made, but as those documents did not relate to matters of an administrative nature, they were not subject to the FOI Act. On review, under s 55K of the FOI Act, the Australian Information Commissioner ("the Commissioner") affirmed the Official Secretary's decision to refuse the appellant access to the documents she had requested. The appellant then appealed to the Tribunal, which affirmed the Official Secretary's decision. On an appeal on a question of law, the Full Court of the Federal Court of Australia upheld the Tribunal's decision. This appeal A panel granted special leave to appeal limited to the following grounds: "That the Federal Court erred: (a) in holding that the Freedom of Information Act 1982 (Cth) ('the FOI Act') did not apply to the [appellant's] requests for access to documents made on 26 and 30 January 2011 by reason of s 6A of that Act; (b) in holding that any document that 'relates to [a] substantive power or function' of the Governor General is not a document that 'relates to matters of an administrative nature' within the meaning of s 6A, and is thereby excluded from the coverage of the Act; or (c) in characterizing each document the subject of the requests as a document that 'relates to [a] substantive power or function' of the Governor General." The grounds show that the disposition of this appeal depends on the proper construction of s 6A of the FOI Act, set out below. The Order of Australia The Order of Australia was established by Letters Patent dated 14 February 1975, in which it was recited: "it is desirable that there be established an Australian society of honour for the purpose of according recognition to Australian citizens and other persons for achievement or for meritorious service". Accordingly, the Letters Patent established "a society of honour to be known as the 'Order of Australia'". The Constitution of the Order of Australia ("the Constitution"), as amended, provides that the Governor‑General shall be the Chancellor of the Order and the Principal Companion in the General Division, taking precedence, after the Sovereign, over all other members of the Order. The Governor‑General "is charged with the administration of the Order", a reference to the Governor‑General's overall responsibility in respect of the Order. The Order has a General Division, which is relevant to these proceedings, and a Military Division. The Constitution also provides for an independent Council for the Order consisting of 19 members and for the receipt of nominations from individuals or groups in the Australian community by the Secretary of the Order, described as appointed by the Governor‑General. The Council is empowered to consider nominations to the General Division, make recommendations to the Governor‑General in relation to those nominations, and advise the Governor‑General on such matters concerning the Order as the Governor‑General may refer to the Council for its consideration. It was not contested that research and inquiry carried out in the Office of the Official Secretary formed the basis of the Council's consideration of any nomination. Apart from receiving nominations, the functions of the Secretary of the Order also include maintaining the records of the Order and the Council and performing such other functions in respect of the Order as directed by the Governor‑General. By convention and practice, the Official Secretary is the Secretary of the Order. The procedure in respect of a nomination for an appointment or award in the Order of Australia was summarised by the Full Court and does not need to be repeated here, save to note that the nomination forms contain criteria and state that all nominations are "strictly confidential". Appointments to the Order and awards of the Medal of the Order are made "with the approval of The Sovereign, by Instrument signed by the Governor‑General and sealed with the Seal of the Order." The features of the Order described above ensure that the grant of honours in the General Division is rendered independent of government and politics. Relevant legislative provisions This appeal concerns the proper construction of s 6A of the FOI Act. In particular, it concerns the meaning of the phrase "unless the document relates to matters of an administrative nature" in s 6A(1), which identifies the only documents of the Official Secretary which are subject to the operation of the FOI Act. Before turning to the text of s 6A and the statutory scheme of which it is a part, it is convenient to say something more about the Governor‑General and the statutory functions of the Official Secretary. The Governor‑General Section 61 in Ch II of the Australian Constitution vests the executive power of the Commonwealth in the Queen and provides that such power is exercisable by her representative in Australia, the Governor‑General. The grant of honours, once regarded as part of the prerogative of the Crown, is now encompassed in the executive power conferred by s 61. These proceedings are not concerned with any of the many powers or functions of the Governor‑General which involve acting on the advice of the Executive Council. Whilst it is accurate to describe the role of the Governor‑General as having evolved since Federation, Governors‑General have exercised a range of constitutional, statutory, ceremonial and community responsibilities. The Governor‑General's role in respect of the Order reflects ceremonial and community responsibilities, as well as the Governor‑General's constitutional position as the representative of the Sovereign in Australia. Sections 6 to 19 of the Governor‑General Act 1974 (Cth) make provision for the office and functions of the Official Secretary. Relevantly, s 6 provides: "(1) There shall be an Official Secretary, who shall be appointed by the Governor‑General. (2) The Official Secretary, together with the staff employed under section 13, constitute the Office of Official Secretary to the Governor‑General. (3) The function of the Office is to assist the Governor‑General." Section 13 provides that the Official Secretary may employ a person as "a member of the Governor‑General's staff." Section 6A(2) of the FOI Act provides that a document in the possession of a person so employed, by reason of that person's employment, is taken to be in the possession of the Official Secretary for the purposes of the FOI Act. The Official Secretary determines the remuneration of staff and may terminate the employment of a member of staff. The Official Secretary is required to prepare and furnish an annual report on the performance of the functions and duties of the Official Secretary, which is ultimately laid before both Houses of Parliament. The Official Secretary also has statutory responsibilities under the Financial Management and Accountability Act 1997 (Cth). The evidence showed that the Governor‑General is assisted and supported by the Office of the Official Secretary in two ways. First, the Office assists and supports the Governor‑General in respect of all aspects of the Governor‑General's role, which includes assisting and supporting the Governor‑General's discharge of substantive powers and functions in respect of the Order. Secondly, the Governor‑General is assisted and supported by the management and administration of office resources, such as financial and human resources and information technology. The distinction between the two forms of support will need to be borne in mind when approaching the task of construing s 6A(1). The FOI Act The general objects of the FOI Act are to give the Australian community access to information held by the Commonwealth Government, thereby "promoting better‑informed decision‑making" and permitting "increasing scrutiny" of the Government's activities. Those objects are to be achieved by requiring "agencies" which are subject to the operation of the FOI Act to "publish ... information" and to "provid[e] ... access to documents." The powers and functions given by the FOI Act to achieve its objects are to be performed and exercised, as far as possible, promptly and at the lowest reasonable cost. Relevantly, "agency" is defined to include "a Department" or "a prescribed authority", which latter term is defined, in turn, to include the person holding, or performing the duties of, an office established by an enactment. Whilst neither the Governor‑General, the Council for the Order, nor the Office of the Official Secretary is "a prescribed authority", the Official Secretary is, and is therefore an "agency" for the purposes of the FOI Act. The statutory obligations to give access to certain documents and to publish certain information are then qualified by specified exemptions. Relevantly, courts, specified tribunals and the Official Secretary are excluded from the statutory obligation to grant access to a document "unless the document relates to matters of an administrative nature." In addition, a document of a Minister that is not an "official document of a Minister" is exempt from the operation of the FOI Act. Division 2 of Pt II of the FOI Act identifies information which agencies must publish, which includes "operational information", about which more will be said later. Part III governs the access which must be given to documents. Relevantly, s 11 provides that a person has a legally enforceable right to obtain access to a document of an agency, other than an exempt document. A person seeking access to a document must make a "request", which may be refused if the document cannot be found or does not exist or if the work involved in processing the request would substantially and unreasonably direct the resources of the agency from its other operations. Division 2 of Pt IV provides for a diverse group of exemptions from the obligations imposed by the FOI Act. Relevantly included as exempt are "[d]ocuments containing material obtained in confidence". Division 3 of Pt IV contains a scheme of conditional exemptions, including documents disclosing "deliberative matter", where there is a public interest to be served by non‑disclosure. The crucial provision for the purposes of these proceedings is s 6A, which provides: "(1) This Act does not apply to any request for access to a document of the Official Secretary to the Governor‑General unless the document relates to matters of an administrative nature. (2) For the purposes of this Act, 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 by reason of his or her employment under that section shall be taken to be in the possession of the Official Secretary to the Governor‑General." (emphasis added) It should be noted that the drafting technique emphasised above is used elsewhere in the FOI Act. Sections 5 and 6 deem a federal court or a specified tribunal, authority or body to be a "prescribed authority". However, 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." It can also be noted that Sched 1 to the FOI Act, entitled "Courts and tribunals exempt in respect of non‑administrative matters", exempts three entities from the operation of the Act. Pursuant to s 7, Pt I of Sched 2 lists agencies which are also exempt, and Pt II of Sched 2 lists agencies which are exempt from granting a right of access to particular documents. The decision of the Tribunal The Tribunal affirmed the decision of the Official Secretary to refuse the appellant access to documents which were the subject of her request. In accordance with an agreement reached between the parties, the Tribunal did not scrutinise the requested documents in detail. The Tribunal noted that if any categories of documents to which the appellant had requested access did not fall within the exception in s 6A(1), it would be necessary to consider at a further hearing whether such documents were exempt from disclosure by reference to some other provision of the FOI Act. The Tribunal found that the Official Secretary held some documents which fell within the categories the appellant had requested. The Tribunal considered that documents generated in connection with the conferral of honours in the Order related to substantive functions of the Governor-General. Accordingly, as the documents requested "squarely relate[d] to the operation of the system of honours", the Tribunal considered that none of the documents, or categories of documents, related to "matters of an administrative nature" within the meaning of s 6A(1) of the FOI Act. The Tribunal affirmed the decision under review. The decision of the Full Court The Full Court held that the relevant distinction drawn by s 6A(1) of the FOI Act, between "matters of an administrative nature" and matters which were not of such a nature, reflected a distinction between the substantive powers and functions of the Governor‑General and the "apparatus" for the exercise of those powers or functions, which was merely supportive. The Full Court considered that the terms of the appellant's request for documents referred to a substantive power or function, namely the administration of the Order of Australia. In particular, that substantive power or function involved nominations for appointments and awards, and consideration of those nominations, which culminated in a decision of whether or not to appoint or award a particular person. It followed that the appellant's request sought access to documents relating to that substantive power, which were excluded from disclosure under s 6A(1) of the FOI Act. In reviewing the Tribunal's decision and dismissing the appeal before it, the Full Court found that it was sufficient for the Tribunal to determine whether the categories of documents identified in the appellant's request were documents relating to "matters of an administrative nature". It was not necessary, in the Full Court's view, for the Tribunal to examine each document individually as "the character of the documents was apparent from the terms of the request." Submissions On behalf of the appellant it was contended that the question before the Tribunal was whether the appellant's request for access to documents of the Official Secretary was capable of covering documents which related to matters of an administrative nature. If the appellant succeeded on that issue, the exclusion from the operation of the FOI Act, contained in s 6A(1), would not apply to the documents. The matter should then be remitted to the Tribunal to consider whether any (or any part) of some 400 documents (comprising about 1500 pages), which were covered by the appellant's request, were excluded from disclosure by virtue of some provision of the FOI Act other than s 6A(1), such as provisions exempting confidential documents from disclosure. In oral argument, it was further submitted that such inspection might also show that the documents requested did indeed fall within the exclusion provided by s 6A(1), because they disclosed some aspect of the decision‑making processes relevant to the Order. Appealing to text, context and legislative history, it was contended for the appellant that the exception in s 6A(1) should be construed widely, such that the only documents of the Official Secretary excluded from the operation of the FOI Act were documents which disclosed any aspect of the decision‑making process in respect of a particular nomination for the Order. A correlative submission was that documents unrelated to that decision‑making process "prima facie would be administrative and not disclose anything confidential." The distinction between the two categories was said to identify the boundary between what s 6A(1) excluded and what it included, for the purposes of access to documents under the FOI Act. Contextual matters relied upon by the appellant in support of those submissions included the examples given to illustrate the "operational information" required to be published, as defined under s 8A, and the distinct exemption of agencies such as the Australian Security Intelligence Organisation ("ASIO") from the statutory scheme under the FOI Act, compared with the inclusion of the Official Secretary. The underlying purpose and operation of ss 5 and 6 of the FOI Act were said to be analogous to the underlying purpose and operation of s 6A, elucidated, it was submitted, by Bienstein v Family Court of Australia. Relying on some analogy between functions of the Governor‑General and judicial officers, as holders of independent office, the appellant identified the public interest underpinning s 6A(1) as the public interest in the independent and impartial discharge of the substantive powers and functions of the Governor‑General, as decision‑maker, and in this case as decision‑maker in respect of the Order. That led to a submission that secrecy or confidentiality in respect of the Governor‑General's responsibilities concerning the Order was not the dominant public interest protected by s 6A, because that interest was specifically covered by other provisions in the FOI Act. The competing contention of the first respondent was that the exception in s 6A(1) should be construed narrowly. It was submitted that s 6A(1) operates to oblige the Official Secretary only to give access to documents under the FOI Act which involved the management or administration of the Office. That limited purpose was said to be clear from the text of s 6A(1) and its wider context. The wider context included the circumstance that the Governor‑General was excluded from all statutory obligations imposed by the FOI Act, and the Official Secretary was only covered by s 6A to the same limited extent as courts and tribunals were covered by ss 5 and 6. The exception in s 6A(1), so construed, was said to adequately serve the object of "public scrutiny" of the Government's processes and activities identified in the FOI Act. Further, the purposive construction of the exception in s 6A(1), proffered by the first respondent, was said to be supported by a number of factors: the heterogeneous nature of the Governor‑General's substantive powers and functions; the function of the Official Secretary to assist and support the Governor‑General in relation to all of those diverse powers and functions; and extrinsic materials containing statements regarding the legislative purpose underpinning ss 5 and 6. Generally, it was submitted that the appellant was not seeking documents which related to the management or administration of the Office, such as the office resources. Rather, the appellant was seeking documents which would elucidate the failure of her two nominations, whilst eschewing any right to be given access to any documents which disclosed the precise reasons for that failure. "Matters of an administrative nature" The task of construing s 6A(1) of the FOI Act is governed by what has been said in this Court recently about the importance of the text of a statute, the meaning and effect of which are not to be displaced by statements in secondary materials. A purposive construction of s 6A(1) accords with s 15AA of the Acts Interpretation Act 1901 (Cth). Further, cognate expressions in a statute should be given the same meaning unless the context requires a different result. A preliminary consideration of considerable contextual significance is that the Governor‑General is not subject to the operation of the FOI Act. Stating the same point positively, and utilising the nomenclature of the FOI Act, the Governor‑General is exempted from the operation of that Act. The Governor‑General does not fall within the definition of an "agency" or "prescribed authority" in the FOI Act. The Governor‑General is appointed by Letters Patent, pursuant to s 2 of the Australian Constitution, and therefore does not hold office in accordance with the provisions of an enactment of the federal Parliament or an Order‑in‑Council. Similarly, the federal Parliament and Justices of the High Court of Australia are not subject to the operation of the FOI Act. Further, holders of federal judicial office and holders of office in specified federal tribunals, authorities and bodies are expressly exempted from the operation of the provisions of the FOI Act. In summary, certain individuals, including the Governor‑General, who hold independent offices pursuant to the Australian Constitution or a federal enactment, requiring the impartial discharge of the powers and functions of such office, are not subject to the operation of the FOI Act. Thus the processes and activities of government, which are opened to increased public scrutiny by the operation of the FOI Act, do not include those associated with the exercise of the Governor‑General's substantive powers and functions, many (even most) of which are exercised in public. Similarly, the FOI Act does not expose to public scrutiny the discharge of the substantive powers and functions of judicial officers or holders of quasi‑judicial office to the extent that they have not been discharged in an open court or a public forum. Independence from government and the public is important in relation to the exercise of the various responsibilities of the Governor‑General, including, but not limited to, the making of decisions. Furthermore, freedom from interference or scrutiny by members of the public (or other branches of government) is an essential aspect of the making of decisions in relation to the General Division of the Order. The first matter of textual significance is that the Official Secretary is "a prescribed authority" subject to the operation of the FOI Act as a person holding, or performing, the duties of that office under the Governor‑General Act 1974 (Cth). The next matter of textual significance is that s 6A(1), and ss 5(1) and 6, reveal a plain intention to constrain the extent to which the FOI Act pursues its purposes and objects against persons (or entities) providing administrative support to individuals who hold independent offices and are not subject to the operation of the FOI Act. The Official Secretary, like courts and other bodies governed by the FOI Act, is only required to grant access to a limited class of documents, characterised by a relationship between the document and subject matter of an "administrative nature". The meaning of that statutory characterisation cannot be determined without some reference to the FOI Act as a whole, and the circumstance that the documents to which access must be granted are an exception to the position that the Governor‑General is not subject to the operation of the FOI Act. The FOI Act does not pursue its objects, as legislative purposes, at any cost. The statutory scheme is complex in achieving a balance between the exposure of some government processes and activities to increased public participation and scrutiny, by making information freely available to persons on request, and exempting other government processes and activities from public participation and scrutiny, in order to secure a competing or conflicting public interest in non‑disclosure. A clear example is the exemption of ASIO from the operation of the FOI Act. The Governor‑General, in common with judges, takes an oath to undertake his or her functions without fear or favour. However, as mentioned, the position of the Governor‑General calls for the exercise of a multiplicity of powers and functions, many (but not all) of which are undertaken in public, and some (but few) of which involve making decisions other than on the advice of a Minister or the Executive Council. The responsibility of the Governor‑General for the administration of the Order is a sui generis role involving processes and decision‑making triggered by the nomination of a person for an appointment or award. The proper independent discharge of the Governor‑General's responsibility for the administration of the Order requires full and frank assistance to the Governor‑General from the Council for the Order. The Council, in turn, requires full and frank assistance from the Office of the Official Secretary. The possibilities of giving offence to failed nominees, defamation, or political controversy in the administration of the General Division of the Order are all avoided by the confidentiality of the selection process, which culminates in public announcement, in due course, of appointments and awards in the Order. The Office supports the Council and the Governor‑General in completing the selection process. However, the task of statutory construction here is not resolved by asking whether any particular document relates to processes and activities "supporting" the role of the Governor‑General, because documents answering that description fall within both the exclusion, and the exception, in s 6A(1). The "non‑application" of the FOI Act to requests for access to documents of the Official Secretary, as stated in s 6A(1), inevitably refers to a class of documents relating to matters which are not "of an administrative nature". In conformity with the exclusion of the Governor‑General from the operation of the FOI Act, those documents relate to the discharge of the Governor‑General's substantive powers and functions. By contrast, 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". The Full Court apprehended this distinction in s 6A(1) correctly, referring to the latter class of documents as relating to the office "apparatus" which supported the exercise of the Governor‑General's substantive powers and functions. The preceding construction of s 6A(1) governs its operation and application in relation to the range of diverse powers and functions of the Governor‑General in respect of which the Official Secretary may be called upon to provide assistance and support. The limited construction adopted by the Full Court of the class of documents relating to "matters of an administrative nature" is appropriate because s 6A(1) must apply equally to powers and functions whose exercise is of the greatest sensitivity, requiring high levels of confidentiality, as it must apply to powers and functions of lesser sensitivity. The correctness of the construction of s 6A(1) adopted by the Full Court is illustrated by the specific case of its application in relation to the Order. In that application it strikes a balance between the public interest in maintaining an Australian system of honours and the public interest in efficient public administration, which is supported by the scrutiny for which the FOI Act provides. The first public interest or purpose is achieved by the exclusion from disclosure of documents relating to non‑administrative matters. In relation to the Order, these must include all unpublished documents associated with the administration (that is, the operation) of the Order, involving, as it does, a confidential selection process in respect of all nominations received within a particular period. The second public interest and purpose is achieved by exposing to public scrutiny documents of the Official Secretary which fall within the exception. The operation of the exception in relation to the Order must be governed by its general construction in application to that particular case. So applied, the exception can only be read as referring to documents relating to the management and administration of the resources of the Office and is consistent with the general non‑application of the FOI Act to requests for access to documents of the Official Secretary. The analogous exclusion of federal courts and specified tribunals, authorities and bodies from the general operation of the FOI Act, except for documents which relate to matters of an administrative nature, also involves a balance of conflicting public interests. There is a long‑recognised public interest in the protection of judicial independence to enable holders of judicial office to exercise authority without fear or favour − judges work in public, are obliged to give reasons, and are subject to appellate review. However, not every action undertaken by a judge in the discharge of the substantive powers and functions of adjudication is undertaken in public. For example, revision of an unrevised transcript of proceedings heard in open court may occur in chambers. That task is referable to the exercise of judicial, rather than administrative, powers and functions. Similar policy considerations apply in respect of specified tribunals, authorities or bodies. Holders of office in such bodies also exercise authority without fear or favour. Determinations are made in public, but distinct conciliatory functions may depend for their success on confidentiality so as to ensure full and frank private discussions designed to effect the settlement of, for example, an industrial dispute. 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. Whilst the proper construction of s 6A(1) plainly emerges from a consideration of the textual and contextual matters discussed, that construction is fortified by resort to statements in relevant secondary materials. In brief, s 6A(1) of the FOI Act, which was inserted in 1984, drew upon the language of ss 5(1) and 6, which were included in the FOI Act as originally enacted. In the relevant parliamentary debates, Senator Evans described the operation of ss 5 and 6 and explained their object. He said: "courts, judicial offices, certain industrial tribunals and their registries ... are not exempt from the operation of the [FOI] Act so far as their administrative procedures, properly so‑called, are concerned." The Senator went on to explain that the inclusion of ss 5 and 6 would secure a legitimate public interest in "efficient administration" and was not intended to intrude on the independence of the judiciary. In Bienstein, the respondent denied the applicant's request for access to all documents relating to the case management of her matters before it. It was decided in Bienstein that ss 5 and 6 of the FOI Act were not intended to extend so far as requiring the giving of access to documents that would put judicial independence, or the independence of other institutions, at risk. However, it was also decided that the verbiage "relates to matters of an administrative nature", as it occurs in s 5 of the FOI Act, can include documents relating to judicial functions and decision‑making. The next step in the reasoning was that documents which would not impinge on the independence essential to the exercise of judicial or decision‑making functions were documents relating to matters of an administrative nature. That reasoning was relied on by the appellant to support the proposition that the only documents of the Official Secretary which were excluded from disclosure under s 6A(1) were documents relating to the substantive powers and functions of the Governor‑General as decision‑maker. That aspect of the reasoning in Bienstein is erroneous. First, the references in the extrinsic materials to examples of "administrative matters", such as the number of sitting days of a court, were misread in Bienstein as 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'." Secondly, it was decided 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. However, that reasoning, deriving from the different factual circumstances in Fingleton v The Queen, accords 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. The approach in Bienstein, relied on by the appellant, is not apt for application to s 6A(1). That approach would not accord proper weight to the circumstance that the Governor‑General is not subject to the operation of the FOI Act and would result in an impractical and unwieldy approach to the application of s 6A(1), contrary to the provision that public access to information is to be achieved promptly and at the lowest reasonable cost. Application of s 6A(1) to the appellant's request Correspondence and file notes relating to nominations Correspondence and file notes relating to the appellant's nominations are directly related to the Governor‑General's exercise of substantive powers and functions in respect of the Order. These are excluded from disclosure as they do not fall within the exception in s 6A(1) of the FOI Act. Criteria for making awards Relevant criteria for the making of awards are explained in the nomination form, which is a document that is available to the public. Working manuals and policy guidelines To the extent that relevant criteria are further explained in working manuals or policy guidelines, the evidence showed that those documents were used in processes and activities concerned with the Governor‑General's exercise of substantive powers and functions in respect of the Order. Those are excluded from disclosure, as they do not fall within the exception in s 6A(1). It has been mentioned that s 8 of the FOI Act obliges publication of an agency's "operational information", being information held by the agency to assist the agency in "making decisions or recommendations affecting members of the public". The appellant drew comfort from the circumstance that an agency's "guidelines" and "practices and precedents relating to [the agency's] decisions and recommendations" are cited as examples of the kinds of documents covered by the expression "operational information". However, the Governor‑General's information relevant to decisions made in respect of the Order is not subject to the operation of the FOI Act. Further, the Official Secretary does not make decisions or recommendations affecting members of the public; recommendations in respect of the General Division of the Order are made by the Council for the Order and ultimate decisions as to the appointment or the making of awards repose with the Chancellor of the Order, the Governor‑General. Documents relating to review processes No documents relating to review processes are in existence, but the Official Secretary accepted that if such documents were brought into existence, they would be available to the public without recourse to the FOI Act. Conclusion and orders There was no error in the Tribunal's decision. Accordingly, the grounds of appeal in respect of the decision of the Full Court were not made out. The appeal should be dismissed with costs.