13.
"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[1]. Similarly, the federal Parliament[2] 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[3]. 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.
34 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.
35 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).
36 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
- ↑ FOI Act, s 4(1), definition of "prescribed authority".
- ↑ Documents in the possession of a Minister in his or her capacity as a member of Parliament are not subject to the operation of the FOI Act: see FOI Act, s 11(1)(b) and the definition of "official document of a Minister" in s 4(1).
- ↑ FOI Act, ss 5(1)(b) and 6(b).
