Freedom of Information after the McKinnon case

The Council's Executive Secretary, Jack R Herman, introduces a series of four articles examining aspects of freedom of information law and practice after the High Court's decision in McKinnon.

Four articles in this issue of the News are devoted to the question of the continued efficacy of Freedom of Information (FoI) laws in Australia. One key aspect of the original intent of the laws was to allow access to information on matters of public interest held by governments.

But, as a study commissioned by the Council in 2002 showed, delays, costs and exemptions, and the use of Conclusive Certificates by Ministers, had made FoI increasingly useless as a tool for Australian journalists. In August 2004, in a speech to the Public Right to Know Conference, the Council's Executive Secretary, Jack Herman, called for substantial change to FoI laws.

At the same time, the Council took notice of attempts by Michael McKinnon, the FoI Editor of The Australian, to access to information on the first home buyer's scheme and bracket creep. The federal Treasurer had issued Conclusive Certificates barring McKinnon's access to this material.

After appeals through the Administrative Appeals Tribunal and the Federal Court, McKinnon's case went to the High Court earlier this year. The Council participated in the case, having lodged an amicus curiae brief in support of better access to information of public interest under FoI.

On 6 September, by a 3-2 decision, the Court rejected McKinnon's appeal. The Court addressed the question of whether the Administrative Appeals Tribunal erred in determining that the Treasurer acted reasonably in issuing Conclusive Certificates that barred McKinnon's access to the material sought. The Press Council issued a press release that expressed its dismay at the decision. In the Press Council's view, the Court failed to give adequate weight to the aims of the Freedom of Information 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".

The Council went on the say:

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.

The Council is not alone in drawing this conclusion. In a detailed case study of attempts by federal ALP member Kelvin Thomson to access information on whether the Australian government had knowledge of 'kickbacks' paid by AWB Limited to the former Iraqi regime, Denying the Public's Right to Know: A critique of the operation of the Freedom of Information Act 1982, Michal Alhadeff suggests that there are three core problems with Australia's FoI framework:

She proposes several strategies for reform:

Drafting: Redraft the objects clause so that it is more explicitly pro-disclosure; and subject exemption provisions to a test of tangible harm.

Review: Abolish conclusive certificates; and establish an independent information commissioner within the Ombudsman's office to oversee administration of the FoI Act and to monitor compliance.

Culture: Confer powers on an information commissioner to promote FoI within and outside of government, to create incentives for best practice and to advise government on reform; establish an 'FoI constituency', a union of journalists, politicians, academics and interest groups to advocate for reform; and streamline information management systems so that information is readily traceable.

Some of these ideas appear in the articles in this issue. The Press Council sees the publication of this material as a first step towards reform of FoI law and practice. Without such reform, FoI in Australia is all but useless to journalists seeking to shed light on decisions by federal, state and territory governments.

JACK R HERMAN

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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