Freedom of Information
A Court Adrift?

PROFESSOR H P LEE analyses the McKinnon judgment.

The majority decision in the High Court case of McKinnon confirms a trend that may erode the standing of the highest judicial tribunal of the land.

Ever since the explicit expression of the current federal government's desire to appoint capital 'C' conservative judges to the High Court, the disdain for the 'adventurous' approach of the Mason era is reflected in the polite but firm relegation of the doctrinal achievements of the Mason Court to the periphery.

The presence of Hayne, Callinan and Heydon JJ on the Court is clearly felt in the McKinnon decision. Here was a golden opportunity for the Court to rise to the occasion and stamp its authority as the sentinel of constitutional government in Australia. The issue, when shorn of the legalistic thickets, boils down simply to this: can a government minister, simply by putting a signature on a certificate, deny access by the press to documents that do not threaten national security, adversely affect Australia's international relations or injure the national interest?

The information that was sought from the Commonwealth Treasury by McKinnon, the FoI Editor of The Australian newspaper, pertained to material about 'bracket creep' and material relating to the First Home Buyers Scheme.

A five-member bench of the High Court stood at the crossroads to consider which path should be taken in the face of the conclusive certificates signed by the Federal Treasurer.

One option was to recognize that the Freedom of Information Act was enacted with the main purpose of facilitating access to information in the hands of governmental agencies. Underlying this was that the efficacy of representative and responsible government depends on the free flow of information. Transparency and accountability are fundamental values that are the life blood of constitutional, and good, government.

The Press Council, in its amicus curiae brief to the Court, highlighted the statements of Lord Simon of Glaisdale in Attorney-General v Times Newspapers [1974] AC 273, at 315:

People cannot adequately influence the decisions which affect their lives unless they can be adequately informed on facts and arguments relevant to the decisions. Much of such fact-finding and argumentation necessarily has to be conducted vicariously, the public press being a principal instrument.

The second option was simply to seek refuge in the technical and pure legalistic approach and to expunge any consideration of the fundamental values necessary for the vitality of a vigorous democracy.

Alas, in McKinnon, the High Court did not walk in unison. Chief Justice Murray Gleeson and Justice Kirby walked the path of the first option while Hayne, Callinan and Heydon JJ, without seemingly any troubled thoughts, strode down the path of the second option.

Through the lens of a public lawyer, the narrow decision in McKinnon may be viewed as a calamity. The High Court of Australia is not any ordinary court. It sits at the apex of an integrated court system in the land. It is regarded as a constitutional guardian. That role does not signify guarding the literal terms of the Constitution - it extends to the maintenance of constitutional values which promote constitutionalism. To perform its role as constitutional sentinel, it must be conscious of protecting those values which pervade a democratic and representative polity. Accountability of government is an essential value.

The majority Justices, in practical effect, have given the government of the day carte blanche to deny information to the people according to its whims and fancies. The servant of the people has, by a narrow judicial philosophy, become the people's master. Justice Dixon (as he then was) in the Communist Party case (1951) 83 CLR 1 spoke eloquently of the 'rule of law' as an assumption among the 'traditional conceptions' buttressing the Australian Constitution. What would he now say?

H P Lee

[Hoong Phun Lee is the Sir John Latham Professor of Law at Monash University and a public member of the Australian Press Council since 1987. He has been Vice Chairman of the Council since March 2004.]

Articles in the November 2006 News on the McKinnon case and the future of freedom of information:

• Introduction - Jack R Herman
• A Court Adrift? - Professor H P Lee
• Can legislative reform rescue FoI? - Inez Ryan
• Where to now? - Dr Moira Paterson
• "We can handle the truth" - Rick Snell

For more information on FoI, and the Council's views on FoI, go to
Articles from the August 2003 APC News on a 2002 study of FoI use
A 2004 speech calling for reform of FoI
The amicus curiae brief to the High Court in McKinnon's case
The Council's response to the Court's decision.

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