General Press Release No. 272 (September 2006)

High Court's FoI Decision

The Australian Press Council is dismayed at the decision of the High Court to dismiss Michael McKinnon's appeal against the Treasurer's refusal to grant access to information on the first home buyer's scheme and bracket creep.  The Council was a party to the case, having lodged an amicus curiae brief in support of the case for better access under Freedom of Information.

In finding that the tribunal did not err, the Court has failed to give adequate weight to the aims of the FoI Act, to "extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth".  This aim should have been applied by the Court to correct the aberration whereby the courts will not interfere with a decision to issue a Conclusive Certificate unless that decision is completely absurd. 

In the wake of the Court's decision the power of a tribunal to question the appropriateness or legitimacy of a certificate is effectively confined to deciding whether or not the decision to issue the certificate was irrational or absurd.  In other words, it will in practice be impossible successfully to challenge a Minister's decision to refuse to disclose information, even where such information should rightfully be in the public domain. 

The contention that the disclosure of information would mislead or confuse the public due to its complexity, one of the pillars of the government's case, suffers from legal paternalism and fails to appreciate the role of the press in informing the public on matters of public interest.  It is the function of newspapers to interpret complex information and pass it on to the public in a comprehensible form. 

Unfortunately, the practical effect of the High Court's determination will be to give governments fresh impetus to suppress information that is embarrassing or politically inconvenient.   The true losers are Australia's voters and taxpayers. 

The decision indicates that FoI law, as well as FoI practice, needs urgent reform.

see also
the Council's amicus brief
the Council's argument on the need to reform FoI

[ return to top ]