In Karen Kline v Official Secretary to the Governor-General andAnor [2013] HCA 52 the High Court has unanimously dismissed Kline's appeal regarding access under s 6A(1) of the Freedom of Information Act 1982 (Cth) to documents relating to the Australian Honours system.
Kline had made a request under the 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 categories of documents related to two nominations by the appellant of a person to the Order of Australia. The award of honours in Australia and elsewhere has been criticised on occasion as a matter of a 'magic circle', with opaque decision-making about who gets the state's indicia of esteem being construed as a matter of rewarding the well-connected - or merely importunate - alongside rewards for people who are truly worthy (and whose rewards legitimate the baubles given to sundry captains of industry and retiring politicians.
Section 6A(1) of the Act provides that the Act does not apply to any request for access to a document of the Official Secretary, unless the document "relates to matters of an administrative nature". The Official Secretary refused Kline's request, informing her that no documents relating to matters of an administrative nature had been identified, although she could be provided with copies of her two nomination forms.
Kline applied for review by the Australian Information Commissioner of the Official Secretary's decision. The Commissioner, in ‘B’ and Office of the Official Secretary to the Governor-General [2011] AICmr 6, affirmed the decision to refuse access. Kline appealed to the second respondent, the Administrative Appeals Tribunal, which in Kline and Official Secretary to the Governor-General [2012] AATA 247, affirmed the decision of the Official Secretary.
On appeal, the Full Court of the Federal Court in Kline v Official Secretary to the Governor-General [2012] FCAFC 184, upheld the Tribunal's decision. Kline then, by special leave, appealed to the High Court.
The High Court held that documents relating to the Governor-General's substantive powers and functions were excluded from disclosure by operation of s 6A(1) of the Act. The exception of a class of documents which related to "matters of an administrative nature" referred to documents concerning the management and administration of the office resources of the Official Secretary, or the provision of logistical support, which the Official Secretary was required to disclose.
Accordingly the documents sought by Kline were excluded from disclosure by s 6A(1) of the Act.
The HCA indicated that relevant criteria for the making of awards in the Order were already available to the public and that the Official Secretary accepted that any documents relating to review processes, if such documents existed, would be publicly available without recourse to the Act.
How are the honours sausages made, with apologies to Saxe? The judgments are not especially enlightening and we will presumably have wait for a Crossman, Ponting or Annan.
In Kline v Official Secretary to the Governor-General [2012] FCAFC 184 the Federal Court stated
The evidence was that from at least 1994 onwards, the actual approval of the Order has been made by the Governor-General, but the list of those appointed or awarded in the Order is, as a matter of courtesy and information, laid before the Sovereign.
In more detail, when a nomination for the making of an appointment and award in the Order of Australia is received by the Australian Honours and Awards Secretariat (part of the Honours and Awards Branch of the Office of the Official Secretary to the Governor-General), the nomination is registered, an acknowledgement sent to the nominator, and then Secretariat staff conduct further research and contact relevant referees, both those suggested by the nominator and those sourced directly by the Secretariat. The purpose of the research is to confirm and verify information supplied by the nominator and to provide additional information that may be relevant to the Council, for its consideration. Once research is completed, nominations are presented to the Council for consideration. Papers are sent to the Council before the meetings which are held twice a year. The outcome of a nomination can either be an appointment or award recommended, no appointment or award recommended or deferral of the nomination for consideration at a later meeting. The Council makes recommendations for appointments and awards to the Governor-General as Chancellor of the Order of Australia. Once the Governor-General has considered and decided those to be appointed or awarded in the Order, congratulatory letters are sent to the successful recipients. Each Australia Day and on the Queen’s Birthday an honours list is gazetted in the Commonwealth of Australia Gazette and the awards are publicly announced. There was evidence that the Secretariat staff used a manual to assist them in their work.In the US 'Politics and the Public’s Right to Know' (Notre Dame Legal Studies Paper No 1465) by Lloyd Hitoshi Mayer comments that -
In the United States it is taken for granted that members of the public should have access to information about their government. This access takes many forms, including the ability to obtain copies of government documents, the ability to attend meetings of government officials, and the related obligations of government officials to document their activities and to reveal certain otherwise private information about themselves. This access also is often limited by countervailing concerns, such as the privacy of individual citizens and national security. Nevertheless, the presumption both at the federal level and in every state is to provide such access.
Now, however, a number of public debates raise the issue of whether this right to know should extend beyond government-government and private-government interactions to also reach private-private interactions that indirectly attempt to influence government officials. For example, should the right to know extend to public identification of "bundlers" who successfully encourage others to make substantial campaign contributions? Similarly, should the right to know require the public disclosure of all significant funders for election-related spending done independently of candidates and political parties? Should the right to know also extend to significant funders behind grassroots lobbying efforts?
This Article explores these questions. Part I briefly describes the history of the public’s right to know in the United States. Part II explains and critiques the reasons commonly asserted to support the public’s right to know, considering whether they in fact support a right to know about government-related activities and actors on the part of the public, including when it comes to private-private political interactions. Finally, Part III considers the extent to which the public’s right to know should extend to certain specific types of private-private interactions that have political ramifications.
