Australia Day honours is now a well established tradition where Australia recognises those who have made an important contribution to our community. But we know little about the decision-making process, and the High Court has recently confirmed it will stay that way, explains Adelaide Law School’s Dr Judith Bannister.
On Australia Day a new batch of honours were awarded to a wide range of Australians in recognition of their outstanding achievements and service to the community. Announced by the Governor-General and reported with much acclaim, it is a modern and very Australian manifestation of a process with ancient British origins founded upon the Sovereign.
The modern honours system in Australia is independent of government, free from political patronage, and is administered by the Governor-General with some public involvement. Members of the public make nominations that are considered by a nineteen member Council for the Order of Australia, and the Council in turn makes recommendations to the Governor-General. The Official Secretary to the Governor-General provides support to the Council, including undertaking research and inquiries that the Council relies upon when considering nominations. The information flows are one way: members of the public make nominations and provide relevant information as part of that process, but the decision-making process is confidential and the person being nominated must not be advised of his or her nomination.
It might seem inevitable that a system founded upon royal patronage would be shrouded in secrecy, but in modern democracies transparency is a growing public expectation. Late last year, in Kline v Official Secretary to the Governor General, the High Court considered a freedom of information (FOI) application for documents about the decision-making process behind these awards. The documents were not disclosed. This was an unsurprising outcome given the limited application of the Commonwealth FOI Act to the Official Secretary to the Governor-General, but the case raises some interesting questions about the extent to which the process of making a collective decision ought to be publicly disclosed.
In 2007 and 2009 Karen Kline nominated an anti-discrimination advocate for an Order of Australia. When her nominations were unsuccessful she sought FOI access to documents concerning the process. The Governor-General and the Council for the Order of Australia are not subject to the Freedom of Information Act 1982 (Cth), but the Official Secretary to the Governor-General is an ‘agency’ subject to FOI. Under s 6A(1), the Official Secretary’s obligations to disclose are, however, limited to documents relating to ‘matters of an administrative nature’. The Office of the Official Secretary refused Ms. Kline’s FOI application, and that decision was upheld by the Office of the Australian Information Commissioner, the Administrative Appeals Tribunal, the Federal Court, and most recently the High Court. There was agreement at all levels that the documents concerning Order of Australia nominations were not ‘matters of an administrative nature’ as that concept is used in the FOI Act. For those interested in the finer details, the case determined that ‘administrative’ is not used here as it is in other administrative law contexts. Not, for instance, as ‘administrative’ is used in the Administrative Decisions (Judicial Review) Act 1977 (Cth). In the context of the FOI Act, ‘administration’ refers to ‘the management and administration of office resources’, and not to the administrative assistance provided to the Governor-General when she is exercising her substantive powers and functions.
Stepping back from the technicalities of the FOI Act, and indeed from the broader question about whether FOI access ought to be confined as it is in s 6A to documents relating to matters of an administrative nature, it is interesting to consider assumptions that are routinely made about the need for confidentiality in decision-making. As the High Court pondered the proper construction of s 6A, it was clear that the judges considered confidentiality in high-level decision-making to be absolutely essential. Explaining the exclusion of the Governor-General, judicial and quasi-judicial office holders from FOI obligations, French CJ, Crennan, Kiefel and Bell JJ commented that those who hold such independent offices ‘require impartial discharge of the powers and functions of such office’. Secrecy and protection from public scrutiny are represented in the judgment as a defence of impartiality and independence:
“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.”
Why that should be so is not as self-evident as this passage in the judgment suggests. Why is freedom from scrutiny required to ensure freedom from interference? If access to documents is requested while a decision is being made, then that could put the independence of the decision-making process at risk. However, does disclosure after the process has been finalised and the decision has been published place impartiality and independence at risk? The High Court expressed the view, very common in FOI discourse, that full and frank assistance and advice to decision-makers requires confidentiality:
“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 concerns about giving offence are very real and there are clearly private interests that may weigh against disclosure of some information. Those passed over for an award may very well not want their names, and personal information about their lives, to be a matter of public debate. There are a wide range of other private interests in maintaining secrecy, as is discussed in other passages of the judgment concerning the importance of protecting litigants in court proceedings from disclosure of their confidential settlement agreements. However, these private interests do not explain the total exclusion of the decision-making process from public scrutiny.
It is the assumption that impartiality, independence and the exercise of authority without fear or favour requires confidentiality that warrants further analysis. Not so much for the Governor-General, the courts and Cabinet, all of which will inevitably continue to be exempted from FOI obligations, but for others involved in collective government decision-making.
How can scrutiny of decisions that have been made in the past affect the impartiality of the decision-maker? One possibility is that the decision-makers and their advisers will self-censor in anticipation of public disclosure. This argument is one very familiar to FOI in relation to disclosure of deliberative processes within government agencies. It is of particular concern in collective decision-making: while individuals may keep their own counsel, groups can hold a diverse range of views before an acceptable decision is negotiated and those views need to be expressed and documented. For decisions made at an agency level, some protection is granted to deliberative processes in the form of a conditional exemption with a public interest test under s 47C. The ‘frank and fearless’ argument is routinely raised in relation to this exemption, and just as routinely criticised. In a recent review of Commonwealth FOI Dr Allan Hawke identified the deliberative processes exemption as being one without a clearly established rationale:
“The absence of a clear indication of the harm that the exemption is designed to protect results in the exemption being subject to differing interpretations and difficult to apply.”
While experienced decision-makers (including High Court judges!) expect to have what the Department of the Prime Minister and Cabinet has described as ‘thinking space’, public expectations of transparency may be very different. The Australian Information Commissioner, Professor John McMillan, recently commented on the unrealistic expectations of some FOI applicants:
“The apparent assumption underlying some requests – often framed as a request for ‘all drafts, emails, briefs and file notes’ – is that the requester believes they occupy a notional desk alongside the agency officer and a right instantaneously to comment upon or participate in every transaction. That is not a sustainable model for effective government in a complex age.”
The extent to which the public are allowed to access the ‘thinking space’ of government decision-makers will be an ongoing source of tension in FOI.
For further discussion see (forthcoming): Judith Bannister, ‘Freedom of Information: A New Era with Old Tensions’ in M Groves (ed), Modern Administrative Law in Australia: Concepts and Context, Cambridge University Press, Melbourne, 2014