2024 12 19 FOI Decision Hamiltonshire.pdf

FEDERAL COURT OF AUSTRALIA
PRINCIPAL REGISTRY

LEVEL 17
LAW COURTS BUILDING
QUEENS SQUARE
SYDNEY NSW 2000

19 December 2024

Glenn Hamiltonshire
By email
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx

Dear Mr Hamiltonshire,

Request under the Freedom of Information Act

I  refer to your email to the Federal Court of Australia (Court)  dated  19 November  2024
requesting access to documents under the Freedom of Information Act 1982 (Cth) (FOI Act).
Specifically, you requested access to the following:

I request access to the Style Guides/Brand Guides/Writing Guides currently used for the
Federal Court of Australia.

Authorised decision-maker

I am authorised under section 23 of the FOI Act to make decisions on behalf of the Court in
relation to requests made under the FOI Act.

Searches undertaken

Searches were undertaken by staff of the Court to identify any documents that fall within the
scope of your request.  The searches included searches of shared drives, emails, the Court’s
information management system, and its intranet including by reference to key search terms.

As a result of the searches undertaken, several writing/style/brand guides currently used by the
Court were found relating to judgments, transcripts, practice notes, website content, and logos.
Some of these materials did not exist in discrete written form, which is discussed further below.

I am not aware of any other steps that can be taken to identify documents within the scope of
your request.

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link to page 2 link to page 2 Decision

I have decided to grant you access to  five (5) of the documents  that were found from the
searches conducted, which include written compilations that have been collated because the
information found did not already exist in discrete written form. These documents and written
compilations are guides relating to branding and logos, digital style, the Court’s intranet, and
its website.

I have decided to refuse you access to the balance of the documents requested, which are the
guides relating to Court judgments, reports, transcripts, and practice notes. I refuse access to
these documents on the basis that the FOI Act does not apply to a request for access to a
document of the Court “unless the document relates to matters of an administrative nature” (s
5(1) of the FOI Act).

I have taken the following into account in making my decision:
•  the terms of your request;
•  the relevant provisions of the FOI Act and case law considering those provisions;
•  the Freedom of Information (Charges) Regulations 1982; and
•  the FOI Guidelines issued by the Office of the Australian Information Commissioner.

Reasons for Decision

Section 5(1) of the FOI Act – requests to apply to courts in respect of administrative matters

The FOI Act has a very limited application to the Court.1  Subsection 5(1) makes clear that the
only request that can validly be made to the Court under the FOI Act is to access a document
that relates to “matters of an administrative nature”. Relevantly, subsection 5(1) provides:

but this Act does not apply to any request for access to a document of the court unless the
document relates to matters of an administrative nature.

The High Court of Australia considered the operation of section 5 of the FOI Act and the
meaning of the phrase “matters of an administrative nature” in Kline v Official Secretary to
the Governor General of Australia & Anor (2013) 249 CLR 645; [2013] HCA 52. In the joint
judgment dismissing the appeal, the Chief Justice and Justices Crennan, Kiefel and Bell held:

…the exception of a class of document which relates to “matters of an administrative nature”
connotes documents which concern the management and administration of office resources,
examples of which were given above. This is a common enough connotation of the epithet
“administrative”.2

1 Paragraphs 2.8 to 2.10 of the FOI Guidelines.
2 Kline at [41].
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link to page 3 link to page 3 link to page 3 link to page 3 link to page 3 The “examples” referred to by the High Court were financial, human resources, and
information technology documents.3  This category of documents was distinguished from
documents that relate to the management and administration of office resources but involve
assisting and supporting an agency in the discharge of its substantive powers and functions.
The latter category of documents is not accessible under the FOI Act.

In its reasons, the High Court held to be erroneous the decision of Bienstein v Family Court of
Australia (2008) 170 FCR 382. Bienstein suggested that documents might be characterised as
relating to matters of an administrative nature when the documents relate to individual legal
proceedings, or when the documents concern the powers and functions of a judicial officer that
are administrative in nature.4  The High Court held that the reasoning in Bienstein accorded no
weight to the circumstance that a judicial officer is not subject to the operation of the FOI Act,
only a registry or office of a court or specified tribunal is subject to the operation of the FOI
Act, and then only in respect of documents relating to administrative matters.5

In a separate judgment in Kline, Justice Gageler also dismissed the appeal. His Honour held:

Matters which do not relate to the provision of logistical support do not become
“administrative” merely because they are in some way preparatory to an exercise of a
substantive power or to the performance of a substantive function.6

The documents you have requested are the writing/style/brand guides currently used by the
Court. Some of the documents that were found from the searches conducted are guides for
Court judgments, reports, transcripts, and practice notes. These documents do not relate to
“matters of an administrative nature” as that compound of words has been interpreted by the
High Court.   They are not documents concerning the management and administration of
registry and office resources such as financial and human resources and information
technology.7  Instead, they are documents related or in some way preparatory to legal
proceedings and involve assisting and supporting the Court in the discharge of its substantive
powers and functions. Such documents are not open to a request for access under the FOI Act.

Section 17 of the FOI Act – when information is not available in discrete written form

Based on the searches conducted by staff of the Court and discussions had with those staff
members, I have determined that there is information relevant to your request that does not
exist in a discrete written form.  That information is housed on online webpages and published
in HTML/web format only and would need to be retrieved and collated to fulfil your FOI
request.

3 Kline at [13].
4 Kline at [51].
5 Kline at [51].
6 Kline at [76].
7 Kline at [13].
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Paragraph 2.42 of the FOI Guidelines explains that the FOI Act “does not require an agency
or minister to create a new document in response to an FOI request except in the limited
circumstances set out in ss 17 and 20”. Section 17 of the FOI Act provides:

(1)  Where:
(a)  a request (including a request in relation to which a practical refusal reason exists) is
made in accordance with the requirements of subsection 15(2) to an agency;
(b)  it appears from the request that the desire of the applicant is for information that is not
available in discrete form in written documents of the agency; and
(ba) it does not appear from the request that the applicant wishes to be provided with a
computer tape or computer disk on which the information is recorded; and
(c)  the agency could produce a written document containing the information in discrete form
by:
(i)  the use of a computer program or other equipment that is ordinarily available to the
agency for retrieving or collating stored information; or
(ii) the making of a transcript from a sound recording held in the agency;
the agency shall deal with the request as if it were a request for access to a written
document so produced and containing that information and, for that purpose, this Act
applies as if the agency had such a document in its possession.
(2)  An agency is not required to comply with subsection (1) if compliance would substantially
and unreasonably divert the resources of the agency from its other operations.

Moreover, paragraph 3.210 of the FOI Guidelines provides:

Section 17 requires an agency to produce a written document of information that is stored
electronically and not in a discrete written form, if it does not appear from the request that the
applicant wishes to be provided with a computer tape or disk on which the information is
recorded. Examples include a transcript of a sound recording, a written compilation of
information held across various agency databases, or the production of a statistical report from
an agency’s dataset…

Having regard to the information found from the searches conducted and the terms of your
request, I have decided to provide you with written compilations of information where that
information is not available  in discrete written form.  There  is  a total of three (3) written
compilations that have been created, reflecting the separate webpages or online locations where
that information was housed.

Access format

Given your FOI request was made by email, I assume that you would prefer access to the
documents and written compilations to which I have decided to grant access in the form of
electronic copies being emailed to you. I therefore release  them  to you by email. The
documents and written compilations accompany this letter and are listed below:

•  FCA Logo Guide;
•  FCA Style Guide;
•  Written compilation – branding and logos;
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•  Written compilation – intranet style guide; and
•  Written compilation – website style guide.

I note that there are additional writing/style/brand guides currently used by the Court which are
publicly available online. While these documents are not accessible under the FOI Act (see
definitions under s 4(1) of the FOI Act), for your convenience, I direct you to where you may
access some of that material through the following hyperlinks:

•  How to address judges and judicial registrars;
•  Australian Government Style Manual;
•  Commonwealth Coat of Arms; and
•  Australian guide to legal citation.

Charges

You have not been charged for the processing of your request.

Your Review Rights

If you are dissatisfied with my decision, you may apply for internal review or to the Information
Commissioner for review of those decisions.  I encourage you to seek internal review as a first
step as it may provide a more rapid resolution of your concerns.

Internal review

Under section 54 of the FOI Act, you may apply in writing to the Court for an internal review
of my decision. The internal review application must be made within 30 days of the date of
this letter.

Where possible please attach reasons as to why you believe review of the decision is necessary.
The internal review will be carried out by another officer within 30 days.

Information Commissioner review

Under section 54L of the FOI Act, you may apply to the Australian Information Commissioner
to review my decision.  An application for review by the Information Commissioner must be
made in writing within sixty (60) days of the date of this letter and be lodged in one of the
following ways:

online: OAIC Web Form
  email: xxx@xxxx.xxx.xx
post: FOI Coordinator, GPO Box 5288, Sydney NSW 2001

More information about the Information Commissioner review is available on the Office of the
Australian Information Commissioner (OAIC) website at: https://www.oaic.gov.au/freedom-
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of-information/your-freedom-of-information-rights/freedom-of-information-
reviews/information-commissioner-review.

Complaints

If you are dissatisfied with the way the Court has handled your FOI request, you may complain
to the Information Commissioner in writing.  There is no fee for making a complaint.  More
information about making a complaint is available on the OAIC website, including a link to
the online complaints form at: https://www.oaic.gov.au/freedom-of-information/reviews-and-
complaints/make-an-foi-complaint.

Yours sincerely,

R Muscat
Registrar
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