Page:Kline v Official Secretary to the Governor General.pdf/15

11.

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.

27 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^[1], as defined under s 8A^[2], 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^[3].

28 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.

29 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

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1. FOI Act, s 8(2)(j).
2. These were an agency's rules, guidelines, practices and precedents relating to "decisions or recommendations affecting members of the public (or any particular person or entity, or class of persons or entities)." See FOI Act, s 8A(1).
3. (2008) 170 FCR 382.