Section 6 - Act not to apply to courts etc.

Extract of legislation

      
6
Act not to apply to courts etc.

For the purposes of this Act––

(a)
in relation to its or his judicial functions, a court or the holder of a judicial office or other office pertaining to a court in his capacity as the holder of that office, is not to be taken to be a prescribed authority or to be included in a department; and

(b)
in relation to those matters which relate to the judicial functions of the court, a registry or other office of a court, and the staff of such a registry or other office in their capacity as members of that staff, shall not be taken to be part of a department.

Guidelines

Application of the FOI Act to courts and other judicial offices

1.1

The Act has a limited application to courts and other judicial offices:

Courts and holders of a judicial office are not prescribed authorities, or part of a department, in relation to their judicial functions.³
A registry or other office of a court, and the staff of those bodies, are not considered to be part of a department in respect of matters relating to the judicial functions of a court.⁴

1.2

These bodies and persons are not subject to the Act, in relation to their judicial functions (for example, functions relating to hearing and deciding cases). However, the Act will apply to documents relating to non-judicial functions, such as administrative matters or employee records.

‘Judicial functions’

1.3

The concept of ‘judicial functions’ is not defined in the Act. However, some assistance on its meaning can be found by looking to the High Court of Australia’s interpretation¹¹ of section 6A(1) in the Commonwealth Freedom of Information Act 1982 (Cth) (Commonwealth FOI Act).¹² Section 6A(1) of the Commonwealth FOI Act limits the right of access from courts to documents relating to ‘matters of an administrative nature’ only.

1.4

In Kline v Official Secretary to the Governor General,¹³ the High Court held that:

matters of an administrative nature means the ‘apparatus’ supporting the exercise or performance of substantive powers or functions (including judicial functions);¹⁴
‘apparatus’ includes logistical support, infrastructure, physical necessities, resources or the platform that enables judicial functions to occur;¹⁵ and
matters preparatory to the exercise of substantive powers or functions are not administrative in nature.¹⁶

1.5

The outcome of Kline is that documents about matters preparatory to the exercise of judicial functions cannot be requested under the Commonwealth FOI Act, whereas documents relating to the ‘apparatus’ supporting the exercise of judicial functions can.

1.6

The High Court’s analysis in Kline may assist in interpreting what ‘judicial functions’ mean in section 6 of the Victorian FOI Act. Where a document relates to the body’s administrative functions, it is likely not exempt from the operation of the Act.

Example

In AV8 v Court Services Victoria (Freedom of Information) [2019] VICmr 198, the Public Access Deputy Commissioner found that memoranda addressed to the Acting, Deputy or Chief Magistrates held by Court Services Victoria related to the exercise of a judicial or quasi-judicial function of a court for the purpose of section 29B (an exemption relating to documents of Court Services Victoria which relate to the exercise of a judicial or quasi-judicial function of a court or the Victorian Civil and Administrative Tribunal).

The Deputy Commissioner, referring to Bienstein v Family Court of Australia [2008] FCA 1138 and Kline, found the memoranda are documents that relate to judicial independence and were not merely documents that relate to logistical support or the administrative processes of the Magistrates Court.

Section 6 - Act not to apply to courts etc.

Extract of legislation

Guidelines

Application of the FOI Act to courts and other judicial offices

‘Judicial functions’

Example

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6	Act not to apply to courts etc.
	For the purposes of this Act––
		(a)	in relation to its or his judicial functions, a court or the holder of a judicial office or other office pertaining to a court in his capacity as the holder of that office, is not to be taken to be a prescribed authority or to be included in a department; and
		(b)	in relation to those matters which relate to the judicial functions of the court, a registry or other office of a court, and the staff of such a registry or other office in their capacity as members of that staff, shall not be taken to be part of a department.