Freedom of Information
McKinnon's case: Where to now?

DR MOIRA PATERSON regrets a missed opportunity and looks to the future.

McKinnon v Secretary, Department of Treasury [1] offered a unique opportunity for the High Court to reinvigorate the democratic operation of the Commonwealth Freedom of Information Act 1982. In the absence of legislative reform there is a danger that its failure to do so will further diminish the already low level of media usage of the Act. [2]

The proceedings in McKinnon concerned the operation of the deliberative processes exemption in s36 of the Act. [3] That exemption plays a pivotal role within the FoI Act by regulating access to documents that shed light on the decision-making processes of government agencies. As FoI appeals to the High Court are a very rare event, the case provided a unique opportunity for the Court to send out a clear message that claims for exemption based on s36 should not be allowed to operate to frustrate the democratic objective of open government.

The key focus of the case was on the correctness of the approach taken by the Commonwealth Administrative Appeals Tribunal in exercising its limited powers to review a ministerial certificate to support a claim for exemption under s36. The tribunal's task in exercising that function was to assess the reasonableness of claims to the effect that it would be contrary to the public interest to disclose Treasury documents concerning the tax bracket creep and the first home owners' scheme.

The approach taken by the AAT was arguably problematic to the extent that it focussed only on rationality of the factors listed as justifying non-disclosure in assessing the reasonableness of certificates issued under s 36(3). That approach is open to criticism on the basis that it ignored the multifaceted nature of the public interest and the need to ensure consideration of competing factors favouring transparency. [4]

In a split decision [5], the Court concluded that the AAT had not made any legal error in accepting as reasonable the claims made in the certificate issued by the Treasurer, despite the existence of evidence which disputed their factual underpinnings (and therefore supported disclosure in the public interest). In reaching this conclusion Callinan and Heydon JJ accepted that "if one reasonable ground for the claim of contrariety to the public interest exists, even though there may be reasonable grounds the other way, the conclusiveness will be beyond review". [6] When coupled with their acceptance of the validity of claims based solely on the Minister's assessment of the potential for disclosure to impact adversely on the candour of written communications, that approach in effect confers an unrestricted right of veto over deliberative processes documents. Although this view is at odds with the acceptance by Hayne J [7] (as well as Gleeson CJ and Kirby J in minority [8] ) of the need to consider all relevant factors, including factors favouring disclosure and therefore arguably not binding, there is equally no clear majority requirement mandating consideration of competing factors favouring disclosure as argued for in the Press Council's amicus curiae brief. [9]

The negative impact of that approach was compounded by a general failure to consider critically other aspects of the interpretation of s36 and the exemption provisions more generally. The court's reluctance to grapple with the difficulties posed by the regular resort to candour and frankness arguments and other class-based claims [10] stands in marked contrast to the approach taken by the New South Wales Court of Appeal in a recent decision which stressed the need for claims for exemption based on disclosure being contrary to the public interest to have a "demonstrated factual basis". [11]

Despite these shortcomings the decision has served an useful purpose in highlighting the potential for proceedings for judicial review [12] to provide for a more effective avenue of review of conclusive certificates than the very limited facility for review of decisions of the AAT currently available under s 58(5). It is therefore likely that future developments in relation to certificates will take place in that alternative context.

The rejection of McKinnon's appeal has also paradoxically served a useful function in increasing the political pressure for statutory reform of the Act. [13] The inclusion of a conclusive certificate mechanism in the internal working document exemption is unique to the Commonwealth Act and long overdue for abolition as advocated by the Australian Law Reform Commission in its Open Government report. [14] It is also to be hoped that other aspects of the report, including recommendations for a strengthening of the objects clause to ensure a pro-disclosure approach to the interpretation of exemption provisions, will also receive serious attention.

Dr Moira Paterson

[Dr Moira Paterson is a Senior Lecturer in the Faculty of Law at Monash University, specialising, inter alia, in FoI matters.]

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