Scope of the current exemption
35.4 Australian federal courts—including the High Court, the Federal Court, the Federal Magistrates Court and the Family Court—fall within the definition of ‘agency’ in the Privacy Act. They are covered by the Act, however, only in respect of those of their acts and practices that relate to matters ‘of an administrative nature’. Acts and practices of the federal courts in relation to their administrative records—including personnel records, operations and financial records, freedom of information records, complaint files and mailing lists—are covered by the Privacy Act. Acts and practices relating to the courts’ judicial records, including court lists, judgments and other documents kept by the courts relating to proceedings, are exempt.
35.5 The partial exemption of federal courts from the operation of the Privacy Act was based on two principles: the doctrine of the separation of powers, which is embodied in the structure of the Australian Constitution; and the common law principle of open justice. The separation of powers requires that different institutions exercise the legislative, judicial and executive powers of the Commonwealth, and that no one institution should exercise the power or functions of the others.
35.6 The principle of open justice requires that, subject to limited exceptions to protect the administration of justice, court proceedings should be open to the public. Public access to court proceedings is vital to maintaining public confidence in the administration of justice. Privacy issues arise, however, because personal information may be produced in court as a result of coercive powers and may be information that would not otherwise have entered the public arena.
35.7 Certain information about matters before a court will generally be in the public arena, such as court lists and judgments, and therefore often available to non-parties. Court lists may include file numbers enabling linkage to other information held in the justice system. Court lists can be highly prejudicial to individuals because they record court appearances rather than outcomes. Court judgments containing sensitive personal information may be recorded in law reports and computerised legal databases and become available to the public. Other case information, such as correspondence between the courts and the parties, is generally not in the public arena but is kept on file in court registries.
Matters of an administrative nature
35.8 The Privacy Act does not define ‘a matter of an administrative nature’. The definition of ‘administration’ in the Macquarie Dictionary suggests that ‘administrative’ means relating to ‘the management or direction of any office or employment’. In administrative law, it has been held that the expression ‘decision of an administrative character’ is ‘incapable of precise definition’ and is to be ‘determined progressively in each case as particular questions arise’.
35.9 Given that a comprehensive definition of ‘administrative’ is not possible, the courts have taken the approach of defining ‘administrative’ by distinguishing it from legislative and judicial actions. The distinction between administrative, legislative and judicial actions also is difficult. In Evans v Friemann, Fox ACJ of the Federal Court stated that ‘it has … proved very difficult, virtually impossible to arrive at criteria which will distinguish in all cases’ the administrative, the legislative and the judicial. In addition, the concepts can overlap or merge into one another, and ‘functions may be classified as either judicial or administrative according to the way in which they are to be exercised’.
35.10 One approach to distinguishing between judicial and administrative functions is to differentiate between what is ‘truly ancillary to an adjudication by the court’, which is incidental to the exercise of judicial power; and those that are not truly ancillary, which are administrative.
35.11 A function that is ‘truly ancillary to an adjudication by the court’
must be truly subservient to adjudication. They must be undertaken pursuant to a direction by the court for the purpose of either quantifying and giving effect to an adjudication already made by the court, or of providing material upon the basis of which an adjudication by the court is to be made.
35.12 In the context of freedom of information legislation, the case law suggests that documents that relate to matters of a non-administrative nature include: ‘documents of the court which relate to the determination of particular matters, such as draft judgments, pleadings, documents returned under summons’, unrevised and unpublished transcripts of proceedings, proceedings and decisions of a court held by an appellate court for the purposes of an appeal, and notes relating to the provision of conciliation counselling by an officer of the court. Matters of an administrative nature would include those that are unrelated to court proceedings, such as employment records, property management and contracts with suppliers; and exclude matters such as pre-trial and settlement conferences and alternative dispute resolution (ADR) work conducted by court staff. The following table shows examples of activities of the courts that are likely to be considered exempt or not exempt.
Examples of exempt activities
Examples of activities covered by the Privacy Act
Research for the writing of judgments
Documents obtained through return of summons
Unrevised and unpublished transcripts of proceedings
Documents relating to pre-trial and settlement conferences
Documents relating to ADR work performed by court staff
Employment records of court staff
Documents concerning the court’s contractors and suppliers
Documents relating to the court’s property management
35.13 In the Discussion Paper, Review of Australian Privacy Law (DP 72), the ALRC did not propose any change to the exemption of federal courts from the operation of the Privacy Act. The ALRC observed that the partial exemption of federal courts is premised on the doctrine of separation of powers as well as the principle of open justice. While acknowledging the inherent difficulty in distinguishing between judicial and administrative matters, the ALRC noted that there already is a line of established jurisprudence in the context of the FOI Act. The ALRC considered that federal courts should continue to be exempt from the operation of the Privacy Act, except in respect of matters of an administrative nature.
Submissions and consultations
35.14 One stakeholder supported a total exemption of federal courts from the operation of the Privacy Act
on the basis that the Courts themselves, either individually or collectively, would maintain a regime for protecting individuals’ privacy as well as access to their records in appropriate cases through rules of court. This would provide federal courts with the flexibility to amend the rules to maintain the balance with the increasing take up by courts of technology, such as online filing, access through the internet to individual court records etc. Were it considered necessary to establish a common statutory framework for the regulation of information privacy in federal courts, appropriate provisions could be inserted directly into the relevant Acts of Parliament.
35.15 Some stakeholders supported the retention of the partial exemption that applies to the federal courts. It was accepted that the doctrine of separation of powers and the principle of open justice are key principles underpinning the exemption, and that the exemption reflects an appropriate balance between openness and the privacy needs of individuals. The Right to Know Coalition submitted that the exemption is necessary to ensure that the public can be informed of the activities of the judiciary through media reports, and that the media’s ability to report effectively on court proceedings is dependent on its ability to have proper access to court records and proceedings. It stated that it would strongly oppose any proposal to remove the exemption ‘as this would severely undermine the media’s ability to continue to report to the public on court proceedings’.
35.16 Several stakeholders submitted that the Privacy Act may not be the appropriate instrument for resolving privacy concerns about court records and proceedings, and that the regulation of access to court records should be left to other legislation or procedural directives. For example, the Centre for Law and Genetics stated that, while the lack of national consistency is problematic, it should be left to other legislation to impose restrictions on access to court documents and hearings. The Office of the Privacy Commissioner (OPC) suggested that ‘changes to court record publication are best dealt with through procedural directives or guidelines rather than legislative intervention’.
35.17 Both the Legal Aid Commission of New South Wales and the Mental Health Legal Centre, however, expressed concerns about instances where sensitive information was obtained from judgment databases or disclosed in court. These include: spent convictions in judgment databases being used to harass the individuals concerned; psychiatric reports being read in open court by a magistrate; and details of a woman’s identity and mental health information being released to the press in the Coroners Court in Victoria.
35.18 There were opposing views as to whether the current distinction between administrative and non-administrative matters should be maintained. Noting the difficulties in distinguishing between adjudicative and administrative functions, the Cyberspace Law and Policy Centre was nevertheless supportive of retaining the exemption. It argued that ‘there is an established jurisprudence around the same distinction in the FOI Act’.
35.19 Another stakeholder argued that the distinction between administrative and non-administrative matters is unsatisfactory because every activity undertaken by the courts by way of administration is undertaken for the sole purpose of serving and supporting judicial officers in the exercise of judicial power. It was suggested that, if the Act were to continue to apply to courts and tribunals, the distinction between administrative and non-administrative matters should be clarified through a non-exhaustive definition.
35.20 The National Alternative Dispute Resolution Advisory Council (NADRAC) submitted that it is unclear to what extent the exemption applies to court-provided, court-ordered or court-referred ADR processes. It noted that, while ‘ADR is not intrinsically a judicial function … it may be regarded as being an exercise of judicial power’. Judicial settlement conferences conducted by judicial officers and quasi-judicial officers are an example. In addition, NADRAC pointed out that ‘ADR is frequently integrated into the judicial process without necessarily being an exercise of judicial power’, for example, where courts referred matters to approved external ADR practitioners.
Options for reform
35.21 The current exemption for federal courts was generally supported. What is at issue is the difficulty in distinguishing between activities of the court that relate to ‘a matter of an administrative nature’, which is covered by the Privacy Act, and those activities that do not relate to such matters and therefore are exempt from the operation of the Act. To clarify this distinction, the ALRC considered the following options for reform in DP 72.
35.22 One option would be to couch the exemption in positive terms, that is, exempting federal courts from the operation of the Privacy Act in respect of their judicial functions. This is the approach taken in New Zealand, New South Wales and the Northern Territory.
35.23 Another option would be to exempt federal courts in respect of their judicial and quasi-judicial functions. This is the approach used in Victoria and Tasmania. The term ‘quasi-judicial function’, however, is imprecise and may not be significantly different from a function that is ‘truly ancillary to an adjudication by the court’.
35.24 A third option would be either to define the word ‘administrative’ or the word ‘judicial’. For example, the Privacy and Personal Information Protection Act 1998 (NSW) provides that the ‘judicial functions of a court’ means:
the functions of the court … as relate to the hearing or determination of proceedings before it, and includes:
(a) in relation to a Magistrate—such of the functions of the Magistrate as relate to the conduct of committal proceedings, and
(b) in relation to a coroner—such of the functions of the coroner as relate to the conduct of inquests and inquiries under the Coroners Act 1980.
35.25 One definition suggested is that:
anything done for or in relation to the exercise of judicial power, or making arrangements for the exercise of judicial power or a court event, whether by a judge, under the control of or delegation by a judge or judges, or by a member of the staff of the court or otherwise, is not taken as administrative. This would include anything in relation to case management, listings, steps taken in the course of a proceeding or pending proceeding under order and like matters.
35.26 Finally, the exemption could be clarified by stating that federal courts are exempt from the operation of the Privacy Act except in relation to matters concerning their office administration. Although the term ‘office administration’ is not used in other legislation, it serves to clarify that it is matters unrelated to proceedings before the court that are intended to be covered by the Privacy Act, including corporate services, contracts, human resources, information technology, building operations and facilities, and finance.
35.27 The partial exemption of federal courts from the operation of the Privacy Act is based on two fundamental principles underpinning Australia’s system of government: the doctrine of separation of powers and the principle of open justice. The doctrine of the separation of powers is embodied in the Australian Constitution to prevent the concentration of power on any one branch of government. It also was intended to avoid interference with the independence of the judiciary and to foster the proper administration of justice. Requiring federal courts to comply with the Privacy Act in the exercise of their judicial functions would expose them to administrative review of their judicial activities, which would be inconsistent with the separation of judicial and executive arms of government.
35.28 The principle of open justice is the common law principle that justice should be administered in open court to ensure the fair and impartial administration of justice. The disclosure of personal information in open court, however, is in direct conflict with the interests of privacy. While there should be an appropriate balance between the interests of privacy and the principle of open justice, the need to ensure the separation of judicial power means that the Privacy Act is not the appropriate mechanism to deal with matters relating to the courts’ exercise of judicial powers. Accordingly, the partial exemption of federal courts from the operation of the Privacy Act should be retained. In the exercise of their judicial functions, it is appropriate for federal courts to deal with the handling of personal information in their own procedural rules.
35.29 Federal courts should, however, continue to be bound by the Privacy Act in respect of matters of an administrative nature. While the ALRC acknowledges the inherent difficulty in distinguishing between judicial and administrative matters, it is not a reason for exempting federal courts entirely from the operation of the Act. Given that the partial exemption of the courts is based in part on the separation of powers, there is no justification for exempting the courts in respect of their administrative operations.
35.30 The nature of matters to be classified as ‘administrative’ or ‘non-administrative’ does not lend itself to legislative definition. Although the term ‘a matter of an administrative nature’ causes difficulties in interpretation, any alternative definition would raise similar problems concerning the scope of the exemption. For example, defining ‘administrative’ to exclude ‘anything done or in relation to the exercise of judicial power, or making arrangements for the exercise of judicial power or a court event’ would be too wide and would raise the same issues concerning interpretation.
 The Industrial Relations Court of Australia is also a federal court. As a consequence of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth), however, the court’s jurisdiction has been transferred to other courts. Despite the transfer of jurisdiction, the Industrial Relations Court continues to exist at law until the last of its judges resigns or retires from office: Federal Court of Australia, Industrial Relations Court of Australia <www.fedcourt.gov.au> at 30 April 2008.
Privacy Act 1988 (Cth) s 6(1).
 Ibid s 7(1)(b).
I v Commonwealth Agency  PrivCmrA 6.
Privacy Act 1988 (Cth) s 7(1)(a)(ii); I v Commonwealth Agency  PrivCmrA 6. In Re Bienstein and Family Court of Australia  AATA 385, the Administrative Appeals Tribunal (AAT) held that the organisation of court lists and the allocation of judicial officers to particular cases are not matters of an administrative nature, but ‘matters affecting litigants and the public, and are intimately related to the independent and impartial administration of justice’: Re Bienstein and Family Court of Australia  AATA 385, .
New South Wales v Commonwealth (1915) 20 CLR 54; R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254; Attorney-General (Cth) v The Queen (1957) 95 CLR 529.
Scott v Scott  AC 417; Dickason v Dickason (1913) 17 CLR 50; Russell v Russell (1976) 9 ALR 103.
 Attorney-General (UK) v Leveller Magazine Ltd  AC 440, 450. See also ‘A Mutual Contempt? How the Law is Reported’ (2005) 32(11) Brief 12, 16.
 C Puplick, ‘How Far Should the Courts be Exempted from Privacy Regulation?’ (2002) 40(5) Law Society Journal 52, 54.
 Ibid, 55.
 In Le and Secretary, Department of Education, Science and Training (2006) 90 ALD 83, the AAT considered how much personal information the Tribunal may publish in its decisions. Deputy President Forgie decided that, pursuant to IPP 11, the Tribunal was required or authorised by or under law to disclose as much personal information as is necessary to meet the requirements of s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth), including the obligation to conduct its proceedings and decision making in public, or to disclose the intellectual processes it followed in reaching a decision.
Macquarie Dictionary (online ed, 2007).
Hamblin v Duffy (1981) 34 ALR 333, 338–339.
 See R Creyke and J McMillan, Control of Government Action: Text, Cases & Commentary (2005), [2.4.25].
Evans v Friemann (1981) 35 ALR 428, 433.
Hamblin v Duffy (1981) 34 ALR 333, 338; Evans v Friemann (1981) 35 ALR 428, 433.
 Precision Data Holdings Ltd v Wills (1991) 104 ALR 317, 325. See also J de Meyrick, ‘Whatever Happened to Boilermakers? Part I’ (1995) 69 Australian Law Journal 106; J de Meyrick, ‘Whatever Happened to Boilermakers? Part II’ (1995) 69 Australian Law Journal 189; A Hall, ‘Judicial Power, the Duality of Functions and the Administrative Appeals Tribunal’ (1994) 22 Federal Law Review 13, 21.
C Enright, Federal Administrative Law (2001), [22.129]; Kotsis v Kotsis (1970) 122 CLR 69, 92.
Kotsis v Kotsis (1970) 122 CLR 69, 92.
 Re Altman and the Family Court of Australia (1992) 27 ALD 369, 373.
 Ibid; Loughnan (Principal Registrar, Family Court of Australia) v Altman (1992) 111 ALR 445.
Davison v Commonwealth  FCA 529.
 Re O’Sullivan and the Family Court of Australia (1997) 47 ALD 765.
 For court-referred ADR processes that are conducted by external ADR practitioners, see Ch 44.
 Confidential, Submission PR 214, 27 February 2007.
 Australian Privacy Foundation, Submission PR 553, 2 January 2008; Right to Know Coalition, Submission PR 542, 21 December 2007; Cyberspace Law and Policy Centre UNSW, Submission PR 487, 19 December 2007.
 Right to Know Coalition, Submission PR 542, 21 December 2007; Cyberspace Law and Policy Centre UNSW, Submission PR 487, 19 December 2007.
 Confidential, Submission PR 214, 27 February 2007; Centre for Law and Genetics, Submission PR 127, 16 January 2007; Social Security Appeals Tribunal, Submission PR 106, 15 January 2007.
 Right to Know Coalition, Submission PR 542, 21 December 2007.
 Office of the Privacy Commissioner, Submission PR 215, 28 February 2007; Confidential, Submission PR 214, 27 February 2007; Centre for Law and Genetics, Submission PR 127, 16 January 2007; Legal Aid Commission of New South Wales, Submission PR 107, 15 January 2007.
 Centre for Law and Genetics, Submission PR 127, 16 January 2007.
 Office of the Privacy Commissioner, Submission PR 215, 28 February 2007.
Mental Health Legal Centre Inc, Submission PR 184, 1 February 2007; Legal Aid Commission of New South Wales, Submission PR 107, 15 January 2007.
Legal Aid Commission of New South Wales, Submission PR 107, 15 January 2007.
Mental Health Legal Centre Inc, Submission PR 184, 1 February 2007.
 Cyberspace Law and Policy Centre UNSW, Submission PR 487, 19 December 2007.
 Confidential, Submission PR 377, 5 December 2007.
 National Alternative Dispute Resolution Advisory Council, Submission PR 564, 23 January 2008.
 Privacy Act 1993 (NZ) s 32(1) (definition of ‘agency’); Privacy and Personal Information Protection Act 1998 (NSW) s 6; Information Act 2002 (NT) ss 4 (definition of ‘tribunal’), 5(5)(a).
 Information Privacy Act 2000 (Vic) s 10; Personal Information Protection Act 2004 (Tas) s 7(a), (b).
 Confidential, Submission PR 377, 5 December 2007.
 See, eg, D Williams, ‘Judicial Power and Good Government’ (2000) 11(2) Public Law Review 133 , 133.
 Scott v Scott  AC 417; Dickason v Dickason (1913) 17 CLR 50; Russell v Russell (1976) 9 ALR 103.