High Court delivers FOI blow

Australia’s Freedom of Information Laws date to 1982. They were drafted by the then Liberal government of Malcolm Fraser and endorsed by Bob Hawke’s new government. However the efficacy of these laws have been brought sharply into question after the Australian High Court (photo credit: airninja pictures) ruled last week in favour of Peter Costello in the case brought against the government by the Australian newspaper. Reporters Without Borders have now called the laws to be repealed. "It is regrettable in a democracy that a government can so easily reject a journalist's request for access to information that is in the public interest," the press freedom organisation said. "It is even more regrettable that the courts uphold the government's ability to evade the need for transparency."

The Australian High Court in a three ( Hayne, Heydon and Callinan JJ) to two (Gleeson CJ and Kirby J) decision rejected Michael McKinnon's and News Ltd appeal in relation to conclusive certificates issued by Secretary for the Department of Treasury under the FOI Act. The majority decided the issue on a narrow and technical consideration of the requirements for section 58. The majority judges were content only to require that the government demonstrate that any documents covered by a conclusive certificate was supported by reasons that were reasonable and rational as distinct from something that is irrational, absurd or ridiculous.

The ruling is an effective death sentence for the ground-breaking FOI legislation. According to the Sydney Morning Herald the decision is an enormous setback to informed debate, and further tips the scales towards unaccountable ministerial power. The case dates to 2002 when Treasurer Costello refused the requests from The Australian's FOI editor Michael McKinnon to reveal what Treasury officials knew about income tax "bracket creep" and possible rorts in the first-home buyers scheme. Costello's refusal had ample precedent on both sides of federal politics - notably from Paul Keating who, as treasurer, had rejected FOI applications from his then Liberal shadow, John Howard. McKinnnon pursued appeals, with the backing of his publisher, News Corp, and later with the support of John Fairfax, in the Administrative Appeals Tribunal, the Federal Court, and now the High Court.

The dissenting Gleeson-Kirby view emphasised that the FOI law asserts a general right to information by Australian citizens, limited only by exceptions necessary to protect vital public interests. In their view, ministers had to provide plausible arguments against a presumption that disclosure was in the public interest. However the majority view gave more weight to the caveats and cautions in the FOI law. They upheld the Administrative Appeals Tribunal decision backing Mr Costello's refusal. The three judges held that the tribunal did not have the power to substitute its opinion for the minister's about whether disclosure would be contrary to the public interest or to assess for itself what the public interest required. This was "a matter as to which a responsible minister has the primary and, as will appear, almost the final judgement by reason of other relevant statutory language". Mr Costello has pointed out FOI laws can be a potential obstacle to public servants giving fearless and candid advice.

The end result is a legal bill of over $1 million for News Ltd, and a large and simple loophole for governments to avoid processing FOI requests. Labor's public accountability spokesman Kelvin Thomson said the court's ruling was a "hammer blow" to accountability. Labor have since pledged to change FOI laws to prevent ministers from hiding sensitive documents. Prime Minister Howard ridiculed this pledge as hypocritical and unbelievable. "When they were in office they were up to their armpits in the use of conclusive certificates and I just don't believe them” he said today.