Australian Press Council amicus curiae brief in the High Court appeal, McKinnon v Secretary, Department of Treasury

17 April 2006

1. SUMMARY

1.1 The Australian Press Council's principal concern is the adverse impact on the flow of information which the public has the right to access, that would be the outcome of upholding of the majority decision of the Federal Court of Australia in McKinnon v Secretary, Department of Treasury [2005] FCAFC 142 (2 August 2005). As Lord Simon of Glaisdale said[1], a free and responsible press is a principal instrument in ensuring that people can adequately influence the decisions which affect their lives and be adequately informed on facts and arguments relevant to the decisions. Accountability of government to the people through the public's access to information must not be subject to government discretion so broad as to be contrary to the intentions of the Freedom of Information Act 1982.

1.2 The Australian Press Council seeks leave to file an amicus curiae brief and, if it is the wish of the Court, to attend as amicus in this matter.

2. ROLE OF THE AUSTRALIAN PRESS COUNCIL

2.1 The Australian Press Council ("Council") is a voluntary association of organisations and persons established on 22 July 1976. The membership of the Council at today's date was attached in Annexure A.

1. Considering and dealing with complaints and concerns about material in newspapers, magazines and journals, published either in print or on the Internet;
    
2. Encouraging and supporting initiatives by the print media to address the causes for readers' complaints and concerns;
    
3. Keeping under review, and where appropriate, challenging political, legislative, commercial or other developments which may adversely affect the dissemination of information of public interest, and may consequently threaten the public's right to know;
    
4. Making representations to governments, public inquiries and other forums as appropriate on matters concerning freedom of speech and access to information;
    
5. Undertaking research and consultation on developments in public policy affecting freedom of speech, and promoting public awareness of such issues.

2.3 The Council is concerned about matters relating both to the responsibility and the freedom of the press. The introductory paragraphs of the Council's Statement of Principles are:

First, the freedom of the press to publish is the freedom of the people to be informed. This is the justification for upholding press freedom as an essential feature of a democratic society. This freedom, won in centuries of struggle against political and commercial interests, includes the right of a newspaper to publish what it reasonably considers to be news, without fear or favour, and the right to comment fairly upon it.

Second, the freedom of the press is important more because of the obligation it entails towards the people than because of the rights it gives to the press. Freedom of the press carries with it an equivalent responsibility to the public. Liberty does not mean licence. Thus, in dealing with complaints, the Council will give first and dominant consideration to what it perceives to be in the public interest.

A copy of the Council's current Statement of Principles was attached.

2.4 The Council seeks, through the filing of an amicus curiae brief, to put to the Court the views of the Council regarding the decision of the Full Bench of the Federal Court in McKinnon v Secretary, Department of Treasury [2005] FCAFC 142 (2 August 2005).

2.5 The principal concern of the Council is the adverse impact on freedom of information if the majority decision of the Federal Court of Australia in McKinnon v Secretary, Department of Treasury is not reversed.

3. LEGAL ARGUMENTS

3.1 The Council wishes to comment on three specific legal issues raised by the appeal in this case. The first relates to the test to be applied in reviewing a conclusive certificate issued under s 36(3) of the Freedom of Information Act 1982. More specifically it concerns the test to be applied by the AAT under s 58(5) in determining whether there exist reasonable grounds for the claim that the disclosure of a document would be contrary to the public interest. The other two issues concern the criteria accepted by the Commonwealth Administrative Appeals Tribunal in its construction of the public interest for the purposes of s 36 and the stance adopted by the Full Court of the Federal Court in interpreting paragraph (b) of the objects clause in s 3(1) of the Freedom of Information Act 1982.

The test to be applied in reviewing a certificate under s 36(3)

3.2 The Council acknowledges that the function of the tribunal in exercising its power to review a conclusive certificate, including a certificate issued under s 36(3), is narrower than its usual function of providing full review on the merits. However, it submits that the more restricted nature of that function does not preclude the tribunal from considering the balancing of competing factors which is an integral feature of the separate public interest test in s 36(1)(b) to which the conclusive certificate relates.

3.3 The Council further submits that to interpret s 58(5) as requiring the AAT to consider the rationality of the claims made in a certificate concerning the balance of competing factors for and against disclosure is not inconsistent with the test formulated by the Full Court of the Federal Court in Department of Industrial Relations v Burchill (1991) 33 FCR 122, 125-6. In that case, which was concerned with the tribunal's powers under s 58(4), Davies J stated that the question to be answered was whether or not the view expressed in the certificate was reasonably open. In the Council's view that test should be translated in the case of a decision under s 58(5) to an assessment of whether the views expressed concerning the balance of public interest factors is reasonably open.

3.4 The Council submits that insofar as subsequent cases have interpreted the decision in Burchill as precluding any consideration of the balancing of public interest factors in the case of s 58(5) they are wrongly decided and should be overruled. Those cases include the decision of Beazley J in Australian Doctors' Fund Ltd v Commonwealth of Australia (1994) 49 FCR 478 at 489.

3.5 Tamberlin J makes the point that the test in s 58(3) and (5) requires consideration of whether there are reasonable grounds for the claim in the certificate. The Council accepts this proposition but differs in its interpretation of the nature of a claim made in a certificate issued under s 36(3). In the Council's view, a claim made that disclosure of a document is contrary to the public interest must be understood as a claim that the public interest factors favouring non-disclosure outweigh the factors favouring transparency.

3.6 In considering the correct approach to be taken to the assessment of the reasonableness of claims contained in certificates issued under s 36(3) the Council submits that it is important to bear in mind the special function of the public interest test in narrowing the scope of what would otherwise be an unacceptably broad exemption. In the absence of s 36(1)(b) the test for exemption in s 36 would be problematic for two reasons. First, it focuses on the processes by which a document is generated rather than on the harm which is likely to result from its disclosure and therefore operates on the basis of unarticulated assumptions about the potential adverse effect of disclosure on the future generation of information via those processes. Second, it relates to processes which are commonplace and which go to the heart of the rationale for freedom of information legislation. As noted by Paterson, this "is problematic due to its potential to hide from scrutiny the true basis on which government decisions are made, thereby frustrating the democratic objectives of participation and accountability. For citizens to be able to make any meaningful contribution to government policy and decision-making, it is imperative that they should have access to pre-decisional documents."[2]

3.7 The public interest test is designed to address these problems by requiring decision makers to consider the specific harm which will arise from the disclosure of the documents for which exemption is claimed and to withhold them only in those cases where it can be demonstrated that any harm identified outweighs both the general public interest in disclosure inherent in the objects of the Act and any other public interest considerations which support disclosure in the specific case.

3.8 The Council respectfully submits that the majority of the Federal Court in this appeal has misconceived the nature of the claim made in a certificate issued under s 36(3) and its role, which is to establish conclusively that a document meets the second part of the two-part test for exemption under s 36(1). That role suggests that the process to be followed in assessing the public interest claims in the certificate must bear some direct relationship to the interpretation of the test used in s 36(1)(b).

3.9 The test in s 36(1)(b) has been consistently interpreted by the Federal Court as requiring the identification and balancing of the public interest factors for and against disclosure. In other words, it requires an agency which wishes to rely on a claim for exemption under s 36(1) to demonstrate that the public factors which favour non-disclosure outweigh those which favour transparency. That test has not been disputed since it was propounded by Beaumont J in Harris v ABC (1983) 50 ALR 551 and has in fact been expanded so that it applies also to the tests of reasonableness found in the exemption provisions which protect personal privacy and business affairs[3]. The requirement for the adoption of a balancing process was not disputed by the respondent or in any judgments of the Federal Court.

3.10 Useful insight into the background to, and rationale for, the inclusion of, the separate public interest in s 36(1) and other exemption provision in the Act can be obtained from the 1979 report of the Standing Committee on Constitutional and Legal Affairs which conducted a detailed inquiry into the bill which formed the basis for the Freedom of Information Act 1982. The Committee acknowledged the amorphous nature of the concept but favoured its use on the basis that it required consideration of "many factors favouring disclosure that might otherwise be ignored"[4]. It also commented that its operation had been strengthened by the decision in Sankey v Whitlam (1978) 142 CLR 1 in which the High Court "individually identified aspects of the public interest that supported the case for non-disclosure, on the one hand and disclosure on the other"[5]. These passages make it clear that the Committee envisaged a balancing process which took into account the public interest factors favouring transparency as an integral aspect of the test.

3.11 In a similar vein, the Committee's 1987 report[6], which followed a detailed review of the operation of the legislation, provided a detailed commentary on the balancing process which it accepted as being central to the operation of the separate public interest test. The Committee referred with approval to the view expressed by Beaumont J in Harris v Australian Broadcasting Corporation (1983) 50 ALR 551, 561 that this involved a careful balancing of "the public interest in citizens being informed of the processes of the government against the public interest in the proper functioning of the government".

3.12 It follows from the existence of an inherent balancing requirement that the test of reasonableness should relate to that balance rather than simply to the set of factors which favour non-disclosure. Thus a claim that disclosure will cause some very minor harm to the public interest (for example, because it may make a very timid individual feel apprehensive for the future) may be based on reason but it is arguable that a claim that that harm counterbalances the public interest in making a policy document available for public debate fails to satisfy that test. To hold otherwise is to in effect provide carte blanche for the withholding of any decision-making or policy document on the basis of trivial but well reasoned claims.

3.13 Finally the Council respectfully submits that Jacobson J is incorrect in suggesting that a requirement for the AAT to consider the balancing of competing interests 'would negate the reasonable grounds concept and permit the Tribunal, through the back door, to come to its own opinion of what is in the public interest'. In the Council's view, it is quite proper for the tribunal to consider whether the person issuing the certificate has undertaken the balancing of competing public interests which is required when making a claim that disclosure is contrary to the public interest; that is not the same as evaluating the reasonableness of the resulting assessment of where that balance lies.

The criteria relevant to the construction of the public interest

3.14 The Council also submits that the AAT's assessment of the factors which could legitimately be relied on in the conclusive certificate involved a misconstruction of the concept of "public interest" referred to in s 36(1)(b). The specific defects to which it wishes to draw attention relate to the arguments based on inhibition of candour and frankness and the tendency for documents to cause confusion.

3.15 In the Council's view the misconstruction referred to has its origins in the list of factors originally identified by the AAT in Re Howard and the Treasurer(1985) 7 ALD 645 as supporting non-disclosure on public interest grounds[7]. The Council notes that there has a been a tendency for those factors to be relied upon on a routine basis by government agencies to support claims for exemption under s 36(1) and for them to be accepted (at least in some decisions of the tribunal) as constituting a definitive list of factors which may legitimately be relied upon to establish that disclosure of documents would be to the public interest. That seems to have occurred because of the concept's amorphous nature and the fact that the early availability of a list of this type offered a useful starting point and structure for making and assessing public interest arguments.

3.16 The Council submits that the manner in which the Howard factors have to be used in this decision and some of the other post-Howard AAT decisions is problematic for two reasons. First some of those factors have in effect come to operate as a class claim of the type discredited by the High Court in Sankey v Whitlam (1978) 142 CLR 1 at 43 (per Gibbs ACJ) and 62-3 (per Stephen J) and more recently by the Full Court of the Federal Court in Commonwealth of Australia v Northern Land Council (1991) 30 FCR 1 at 28-30 (per Black CJ, Gummow and French JJ). In other words, they give rise to arguments for exemption which are based on assumptions that documents of a specific class will always result in harm to public interest if they are disclosed rather than arguments which focus on the likely effect of the disclosure of each specific document having regard to its specific contents and the specific context in which it was generated. Arguably this defeats one of the key benefits of the public interest test, namely that it allows for a fine-grained approach which takes into account the competing factors for and against disclosure in the case of the specific documents to which a claim for exemption relates. Second, acceptance of the cogency of some of the factors arguably conflicts with the underlying rationale for the enactment of the legislation.

3.17 The Council submits that arguments based on candour and frankness are especially problematic because of their tendency to allow for documents to be withheld without regard to their own individual contents. It accordingly urges the Court to take the opportunity offered by the misuse of this criterion in this case to offer specific guidance to ensure that they do not continue to be used in a way which undermines the operation of the Act[8]. The specific argument relied on by the respondent in this case was that disclosure would not affect the supply of information per se but rather that it would lead to information being provided orally, instead of in writing. With respect, it seems difficult to believe that a minister would in reality be prepared to run the risk of acting on the basis of undocumented advice. It is very important therefore that claims of this nature are not accepted at face value without clear evidence to establish that officers would in reality act in this manner, especially having regard to their specific ethical obligations as public servants as outlined in the dissenting judgment of Conti J at [78]. The Council would particularly like to draw to the attention of the court the fact that the evidence adduced in this case was confined principally to the testimony of a senior public servant concerning his views of the likely impact of disclosure on the future behaviour of other agency officers rather than testimony by specific individuals to the effect they personally would alter their behaviour in the way described. This is akin to hearsay evidence and suffers from the same defects

3.18 The Council also submits that arguments based on the tendency of documents to mislead are likewise problematic because of their potential to undermine the objectives of open access and it would again urge the Court to take this opportunity to offer specific guidance to ensure their appropriate use. In this case the argument successfully relied on by the respondent was that it was contrary to the public interest to disclose documents prepared for an expert audience on the basis that they contained jargon and technical terms which could easily be misinterpreted. The tribunal specifically rejected arguments that the Treasury had adequate facilities to explain documents or put them in context on the basis that the Act did not provide that an exempt document can cease to be exempt for that reason. However, with respect a document is not exempt unless its disclosure is contrary to the public interest and the fact that it can be made available in a way which ensures that it is not misleading must substantially reduce the cogency and weight of any public interest argument based on its potential to mislead. Although the tribunal's comment needs to be considered in the light of its limited view of the nature of its review task in relation to a certificated claim, there is a danger that it may be given a much wider application in the absence of clear direction concerning its inappropriateness in the context of a balancing process.

Interpretation of s 3(1)(b)

3.19 A final issue in respect of which the Council wishes to make submissions relates to the position adopted by the Federal Court in relation to paragraph (b) of the objects clause in s 3(1) of the Act.

3.20 Section 3(1) refers to the broad objective of increasing 'as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth'. That objective is further expanded in three paragraphs, including paragraph (b) which spells out the function of providing a general right of access to documents subject to 'exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities'. As pointed out by Bayne, there is a good argument that the subsidiary object of creating a right of access should be understood to implement the general object set out in the opening words of s 3(1) and that the exceptions and exemptions should therefore be interpreted narrowly so as to extend as far as possible the community's right of access.[9]

3.21 However, in his majority judgment Jacobson J specifically refers to and applies the 'non-leaning' stance favoured by the majority of the Full Court of the Federal Court in News Corp Limited v National Companies and Securities Commission (No 4) (1984) 1 FCR 64 at 66 and Searle Australia Pty Limited v Public Interest Advocacy Centre (1992) 36 FCR 111 at 114-115. That approach is summarised in the following extract from the joint judgment of Bowen CJ and Fisher J:-

In construing our Act we do not favour the adoption of a leaning position. The rights of access and the exemptions are designed to give a correct balance of the competing public interests involved. Each is to be interpreted according to the words used, bearing in mind the stated object of the Act.

3.22 The Federal Court's non-leaning stance contrasts with that adopted by the Victorian Supreme Court in relation to a similarly worded exemption in the Freedom of Information Act 1982 (Vic) in Accident Compensation Commission v Croom [1991] 2 VR 322 and Sobh v Police Force of Victoria [1994] 1 VR 41 in which it endorsed the 'leaning' position[10], which has been adopted by the United States Supreme Court in relation to the United States Freedom of Information Act.[11]

3.23 As noted in the 1995 report by the ALRC and ARC on the Freedom of Information Act[12], the approach adopted by the Victorian authorities is supported by obiter dicta of the High Court in Victorian Public Service Board v Wright (1986) 160 CLR 145 concerning a similarly worded objects clause in the Freedom of Information Act 1982 (Vic), s 3(1). In that case, which concerned the scope of the review powers of the Victorian County Court rather than the interpretation of an exemption provision, the High Court commented at p 153 that:

In the light of [s3 and s16] it is proper to give to the relevant provisions of the [Victorian FOI] Act a construction which would further, rather than hinder, free access to information.

3.24 The Council submits that there are sound policy reasons for rejecting the Federal Court's non-leaning stance. It points out that the Freedom of Information Act was enacted in the context of a long standing tradition of secrecy and a natural tendency for agencies not to wish to expose their activities to public scrutiny. While there has been some change in that culture, the refusal to adopt a pro-disclosure stance to the interpretation of exemption provisions fails to discourage an overly broad interpretation of exemption provisions by agencies and arguably risks causing the Act to fail to achieve the democratic objectives which was its raison d'etre.[13]

4. POLICY ARGUMENTS

4.1 The Council points out that in a robust democracy availability of information is fundamental to enhancing the accountability of government. The ability of the people to form a judgment of those who claim to govern in their name depends on the ability of the press to put information into the public arena. Hence, the court's approach to the matter under consideration must be one which does not permit a minister to make a mockery of the freedom of information scheme by simply issuing a conclusive certificate at whim.

4.2 In Attorney-General v Times Newspapers ([1974] AC 273), Lord Simon of Glaisdale, at p 315, said:

The first public interest involved is that of freedom of discussion in democratic society. 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.

These statements of Lord Simon of Glaisdale were endorsed in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 by Mason CJ (at 31(n 95)), Brennan J (at 47-8) and McHugh J (at 103) and in Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 by Mason CJ (at 139 (n6)), Gaudron J (at 211-2) and McHugh J (at 231).

4.3 Mason J in The Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 said (at 52):

It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action.

4.4 The Council urges the Court to reverse the majority decision of the Federal Court for the majority decision sends a signal to any government in power that it can easily resort to conclusive certificates to preclude public scrutiny of its activities.

Footnotes

1. In Attorney-General v Times Newspapers ([1974] AC 273), at p 315.
    
2. M Paterson, Freedom of Information and Privacy in Australia: Government and Information Access in the Modern State (2005) [7.33].
    
3. See "Freedom of Information and Privacy: A Reasonable Balance?" (1992) 66 Law Institute Journal, 1001-1004.
    
4. Senate Standing Committee on Constitutional and Legal Affairs, Report on the Freedom of Information Bill 1978 and Aspects of the Archives Bill 1978, 1979, para 5.23.
    
5. Ibid.
    
6. See Senate Standing Committee on Legal and Constitutional Affairs, Freedom of Information Act 1982, Canberra, 1987.
    
7. For a more detailed discussion see M Paterson, Freedom of Information and Privacy in Australia: Government and Information Access in the Modern State (2005) 295-8.
    
8. See R Snell "The Ballad of Frank and Candour: Trying to Shake the Secrecy Blues from the Heart of Government" (1995) 57 Freedom of Information Review 34.
    
9. See P Bayne, Freedom of Information, Law Book Co. Ltd, Sydney, 1984, p 20.
    
10. For a more detailed discussion of the interpretation of objects clauses in freedom of information legislation see P Bayne and K Rubenstein, "The Objects of the Freedom of Information (FOI) Acts and their Interpretation" (1995) 2 Australian Journal of Administrative Law 114.
     
11. See, for example, Department of Air Force v Rose 425 US 352 (1976) at 361; United States Dept of Justice v Julian 486 US 1 (1988).
     
12. Open Government: a review of the federal Freedom of Information Act (1995) para 4.3.
     
13. See M Paterson, "Transparency in the Modern State: happy birthday FOI or Commiserations?" (2004) 29 Alternative Law Journal 10.

see also
Council's position on FoI generally

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