Case: Fingleton v The Queen [2005] HCA 34 (2005) 227 CLR 166
Outcome: discussed
The senior member then set out the terms of s 5 of the FOI Act , and a passage quoted from the judgment of the High Court in Fingleton v The Queen [2005] HCA 34 (2005) 227 CLR 166 at [52] per Gleeson CJ, to which I refer below. The senior member then referred to MacKeigan v Hickman [1989] 2 SCR 796 , to which Gleeson CJ had referred in Fingleton , for its comments by the Supreme Court of Canada on the limits of the power to investigate the reasons for a decision to assign a judge to a case. The senior member then continued: 8. The Tribunal has considered the nature of the documents relevant to Ms Bienstein's request, and finds that the documents refer to organisational matters such as Court lists and the assigning of judicial officers to particular cases. As noted in Fingleton, these are matters affecting litigants and the public, and are intimately related to the independent and impartial administration of justice. They are not documents of internal administration. 9. For these reasons under s 5 of the FOI Act the Tribunal finds that the relevant documents are not documents that relate to matters of an administrative nature, so the FOI Act does not apply to the request for access to the documents. 35 The questions of law specified in the applicant's notice of appeal are in the following terms: 1) Whether a Respondent who claims to have grounds for challenging the Tribunal's jurisdiction is compelled either to issue the challenge and have it determined at the outset or submit to the jurisdiction for the duration of the proceeding; 2) What bearing, if any, do the following statutory provisions have on the s 11 enforceable right of access provision of the Freedom of Information Act : a) Sections 5 , 14 and 20 FOI Act , generally; b) Order 5 Rule 6 Family Court Rules in the context of Tribunal proceedings regarding an FOI request to the Family Court of Australia for access to one's own case management documents; 3) Whether it is Tribunal's role in Part VI FOI Review proceedings to determine which of the Applicant's rights in respect of the request remain to be satisfied and promptly direct the Respondent to satisfy those rights in a timely manner; 4) Whether an Applicant in Part VI Review proceedings has an immediate right to receive in the Respondent's s 37 statement full and honest disclosure of the Respondent's relevant document holding, an account of the steps the Respondent took in the search and decision-making process, and documents to evidence the account given; 5) Whether documents relating to the case management of matters before the Family Court of Australia necessarily fall within the s 5 FOI Act exclusion and whether the High Court decision in Fingleton v The Queen [2005] HCA 34 (23 June 2005) supports such a conclusion; 36 It is clear that the notice of appeal was prepared without legal assistance. The questions of law are framed in an abstract way, rather than by reference to specific issues decided by the Tribunal or to specific reasons given by it for its decision. Grounds 2 and 5 clearly raise the effect of s 5 of the FOI Act , and therefore raise for consideration the correctness of the Tribunal's decision that all of the possible documents sought in the applicant's request did not relate to matters of an administrative nature. The other questions of law raised concern aspects of the way in which the Tribunal dealt with the applicant's application for review of the respondent's decision, prior to the Tribunal making its decision. These concerns of the applicant are reflected in the orders sought in her notice of appeal, which are expressed in the following terms: 1) Declare that documents related to the management of cases proceeding in a court or tribunal are documents of the court or tribunal relating matters of an administrative nature and, as such, fall outside the s 5 FOI exclusion. 2) Declare that the Tribunal's role during the course of proceedings and when making a final decision is to promote and enforce the Applicant's rights in relation to the FOI request in question. 3) Declare that the Tribunal has an obligation to ensure that Respondents comply fully and without undue delay with provisions of s 37 of the Administrative Appeals Tribunal Act . 4) Directed the Respondent to file an appropriately amended s 37 statement, incorporating an amended decision with schedule of all documents within scope of the request that had been located, an account of the searches it had conducted and objective documentary evidence in support of the account; 5) Set aside the Tribunal decision and remit the matter to be dealt with according to law. 6) Make a costs order in favour of the Applicant. 37 The concern of the applicant with the manner in which her request for access to documents was dealt with by the respondent, both initially and while it was pending in the Tribunal, is reflected in the grounds advanced in the notice of appeal. These grounds cover approximately six pages. The applicant sets out in some detail the history, which I have set out above, including some substantial quotes from correspondence and other documents. Woven into this history are indications that the applicant takes issue with various statements made on behalf of the respondent and with the course taken by the Tribunal in relation to her application to review. She also clearly takes issue with the view of the respondent, and that of the Tribunal, in relation to the application of s 5 of the FOI Act . 55 As I have said in [34], the Tribunal relied on a passage quoted from the judgment of Gleeson CJ in Fingleton v The Queen [2005] HCA 34 (2005) 227 CLR 166 at [52] , where his Honour said: The answer to that question, and to the respondent's argument, requires closer examination of s 10 of the Magistrates Act . In truth it covers a number of matters closely related to issues of judicial independence. Sub-sections (1) and (2) of s 10 cover the whole range of matters relevant to the orderly and expeditious exercise of the jurisdiction and powers of the Magistrates Courts, and include the organising of court lists, the allocation of magistrates to particular localities, and the assigning of magistrates to particular work. Arrangements of that kind are not merely matters of internal administration. They affect litigants and the public. Within any court, the assignment of a judicial officer to a particular case, or a particular kind of business, or a particular locality, is a matter intimately related to the independent and impartial administration of justice. This was the basis of the decision of the New South Wales Court of Appeal in Rajski v Wood, where it was held that the nomination or allocation of a judge to hear a particular case was not justiciable. As was pointed out in Minister for Immigration and Multicultural Affairs v Wang, where it is the function of a head of jurisdiction to assign members of a court to hear particular cases, the capacity to exercise that function, free from interference by, and scrutiny of, the other branches of government is an essential aspect of judicial independence. The same may be said of the capacity to exercise that function free from the threat of civil or criminal sanctions. 56 When viewed in the context of the judgment of Gleeson CJ, this passage may not lead to the conclusion that the Tribunal drew from it. 57 In Fingleton , the Chief Magistrate of Queensland had been convicted of the offence of unlawful retaliation against a witness under s 119B of the Criminal Code (Qld) ("the Criminal Code "). The facts were that the Chief Magistrate had determined that a magistrate should be transferred to Townsville. The magistrate filed an application for review of that determination. The magistrate wrote to the Magistrates Association, seeking assistance with her application. A Co-ordinating Magistrate, who was also Vice-President of the Magistrates Association, provided an affidavit to assist the magistrate in the review proceeding. The Chief Magistrate then sent to the Co-ordinating Magistrate a letter calling on him to show cause why he should not be removed from the position of Co-ordinating Magistrate. The letter referred specifically to the affidavit in support of the magistrate's review application. 58 On appeal to the High Court, there was raised for the first time s 30 of the Criminal Code , which provided: Except as expressly provided by this Code, a judicial officer is not criminally responsible for anything done or omitted to be done by the judicial officer in the exercise of the officer's judicial functions, although the act done is in excess of the officer's judicial authority, or although the officer is bound to do the act omitted to be done. 59 The power the exercise of which by the Chief Magistrate gave rise to the charge was found in s 10 of the Magistrates Act 1991 (Qld) ("the Magistrates Act "). Particularly relevant was the express power in s 10(2)(d) , of nominating a magistrate to be a Supervising Magistrate or a Co-ordinating Magistrate for the purpose of the allocation of work of the Magistrates Court. In conjunction with s 25(1) of the Acts Interpretation Act 1954 (Qld), the power to appoint included a power to remove. It was also necessary to consider s 21A of the Magistrates Act , which provided: A magistrate has, in the performance or exercise of an administrative function or power conferred on the magistrate under an Act, the same protection and immunity as a magistrate has in a judicial proceeding in a Magistrates Court. 60 One of the issues determined by the High Court in Fingleton was whether, in combination, s 21A of the Magistrates Act and s 30 of the Criminal Code gave immunity to the Chief Magistrate in exercising the power given to her by s 10(2)(d) of the Magistrates Act . In his reasons for judgment, Gleeson CJ dealt at length with this issue. At [47]-[48], his Honour summarised the competing contentions on the issue: The argument for the appellant in this Court was that s 10 of the Magistrates Act conferred on the appellant as Chief Magistrate a series of administrative functions and powers, that she acted in the performance or exercise of those powers, that she had the same protection and immunity as she had in the exercise of her judicial functions, and that, except as expressly provided by the Code, she was not criminally responsible for anything done by her in the exercise of her administrative functions, even if the act done was in excess of her administrative authority. The argument for the respondent turned upon a question of construction of s 21A and, in particular, the words "administrative function or power conferred on [a] magistrate under an Act". The respondent submitted that those words did not cover s 10 of the Magistrates Act itself. The argument called in aid two considerations: one textual; the other related to the rationale of immunity. 61 His Honour then proceeded to deal with what he described as the textual consideration. This involved the question whether the phrase "under an Act" in s 21A of the Magistrates Act referred only to functions or powers conferred on magistrates by legislation other than the Magistrates Act , or whether it included such powers and functions conferred by the Magistrates Act itself. By contrast, the consideration related to the rationale of immunity involved a comparison of the sorts of functions and powers conferred by s 10 of the Magistrates Act with the sorts of functions and powers conferred by various other statutes, as to which there was a need for the protection of magistrates from interference with their independence in the decision-making process. The question that Gleeson CJ answered in the passage from his judgment, which I have quoted in [55] above, is posed in [51] of his Honour's judgment: Such independence is important in relation to the exercise by magistrates of the various responsibilities conferred on them by other Acts of the kind set out above. What, the respondent asks, does it have to do with matters of internal court administration and discipline of the kind dealt with by the Magistrates Act itself? 62 It is to be noted that, in the passage quoted in [55] above from his Honour's judgment, Gleeson CJ described s 10 of the Magistrates Act as covering a number of matters "closely related to issues of judicial independence." In other words, they were not themselves issues of judicial independence, but closely related. His Honour referred to the organising of court lists, the allocation of magistrates to particular localities and the assigning of magistrates to particular work. In saying that arrangements of that kind "are not merely matters of internal administration", but that they "affect litigants and the public", his Honour was not saying that those matters fell within the exercise of judicial power. Rather, Gleeson CJ was underlining the public importance of these aspects of court administration, because of their close relationship to issues of judicial independence. Following the passage quoted in [55] above, in [52] of his Honour's reasons for judgment, Gleeson CJ said: The responsibilities conferred upon a Chief Magistrate by s 10 would cover some mundane issues of a kind that arise in the administration of any substantial organisation. On the other hand, some of those responsibilities, and especially those involving decisions which directly or indirectly determine how the business of Magistrates Courts will be arranged and allocated, concern matters which go to the essence of judicial independence. The selection of supervising and Co-ordinating Magistrates is a matter that falls into that category. It is, therefore, incorrect to say that the functions and powers conferred on the Chief Magistrate by s 10 are unrelated to the rationale for the immunity in question. As to some of those functions the rationale is directly relevant. As to some it may be of no relevance, or of limited relevance. As to others, its relevance may depend upon the circumstances. 65 In Fingleton at [59], McHugh J expressed his agreement with the reasons of Gummow and Heydon JJ with respect to the issue relevant to this case. At [121]-[123], Gummow and Heydon JJ said: The appeal in this Court thus turns upon the construction of s 21A of the Magistrates Act . The submissions for the respondent fix upon the phrase therein "conferred on the magistrate under an Act". The respondent seeks to introduce a limitation upon those words so that the phrase is to be understood as if it read "under any Act other than this Act". Section 10 of the Magistrates Act conferred upon the appellant a range of administrative functions or powers. They included the nomination of Co-ordinating Magistrates, the allocation of magistrates to particular localities and the power of reprimand. Indeed, it was a demand made by the appellant upon a Co-ordinating Magistrate to show cause why he should not be removed from that post which gave rise to the charge against her under s 119B of the Code. Attainment of the evident purpose of s 21A will be limited if it were to be given the qualified reading for which the respondent contends. For these reasons, which concern the construction of s 21A, and those on this issue developed by the Chief Justice in his judgment, the appellant was not liable to be held criminally responsible for the conduct alleged against her. 66 For reasons that he set out at [162]-[169], Kirby J came to the same conclusion on the question of judicial immunity. At [193], Hayne J expressed his agreement with the reasons of Gummow and Heydon JJ. Each of the members of the High Court other than Kirby J therefore expressed their agreement, directly or indirectly, with the reasons given by Gleeson CJ. 67 What emerges from Fingleton , and particularly from the passage quoted by the Tribunal, of relevance to this case is the proposition that there will be powers and functions exercised and performed within a court, even by the judicial officers of that court, that are of an administrative nature. Some of those powers and functions will be such that, of their very nature, they are so close to the overriding consideration of judicial independence as to be an essential part of the adjudicative function. It follows that the exercise of those functions, although it might be termed "administrative", ought to be protected from scrutiny by other arms of government, or by members of the public. Not all of the powers and functions properly characterised as being of an administrative nature will be so closely related to judicial independence that they need this kind of protection. In some cases, it will be necessary to look at the particular exercise of a power, or the particular act or acts in performance of a function, in their context, to determine whether public or executive scrutiny of them would endanger the necessary independence. This accords with the sort of distinction expressed by Senator Evans when he moved the amendment that became ss 5 and 6 of the FOI Act , between documents relating to matters of an administrative nature, and documents the exposure of which to the public view would threaten the independence which is a necessary element of the exercise of adjudicative functions by courts and tribunals. It is this distinction that is of the highest relevance in determining the purpose, and therefore the proper construction, of s 5 (and, incidentally, of s 6) of the FOI Act . 68 Reference was made by counsel for the respondent to a number of other authorities, either on s 5 of the FOI Act or on similar legislation. It is necessary to look at those authorities, to see whether they provide any useful guidance to the construction of s 5 , as relevant to this proceeding.