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International Law

: Open and Shut

Orders of Australia beyond question?

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During Estimates hearings of the Senate Finance and Public Administration Committee on Monday (08/02/2010), The Greens Senator Bob Brown raised with the Governor General's Official Secretary (F&PA 44-46), the issue of unsuccessful nominations for honours (446 of 738 nominees or 60% were successful this year) that led to discussion about the Council for the Order of Australia, how it operates, the fact that there is no review of decisions process, and no access to information about how decisions are made.

In passing Senator Brown commented he "was aware that the council is exempt from freedom of information. That is another matter of concern." On a related matter, the Official Secretary said advice received was that as the Council is not an agency it is not accountable to the parliament, but took this question on notice.

The Official Secretary is the Secretary to the Council so there is an interesting question whether documents held relating to the Council's work are covered by the Freedom of Information Act, even if the Council itself is a separate body outside the scope of the Act. Section 6A provides:

Official Secretary to the Governor-General

(1) This Act does not apply to any request for access to a document of the Official Secretary to the Governor?General unless the document relates to matters of an administrative nature.

(2) For the purposes of this Act, a document in the possession of a person employed under section 13 of the Governor?General Act 1974 that is in his or her possession by reason of his or her employment under that section shall be taken to be in the possession of the Official Secretary to the Governor?General.

I'm unaware whether this has been tested, but coincidentally Karen Kline (who I don't know) raised the issue in a submission (PDF 86KB) to the Committee in connection with its reference on the Freedom of Information Reform Bill. That may have been based on unsuccessful experience.The rub, as the law stands at present, is whether Council documents are in the Official Secretary's possession by reason of his employment as Official Secretary, and whether they relate to matters of an administrative nature.

Full post as published by Open and Shut on February 09, 2010 (boomark / email).

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