Freedom of Information in Australia - Feature Article

(This article was written for my Media Law class; it’s probably boring as batshit to most people, but hey I need things to post up)

ON THE MOUNTAIN TOP

Has the McKinnon Case verdict finally caused Freedom of Information to fall?

F

reedom of Information legislation is something of an enigma in the western world.  Almost every country has it; almost every government insists on having it; almost every journalist wants it; and almost every politician in power seeks every possible way to subvert it.  A little harsh?  Perhaps.  But the McKinnon case and its resulting fallout indicate that there is more truth to this statement than is comfortable for both the politicians and the judiciary.

“We could be standing on a mountain looking out at an open new world of accountability for Australian Government or we’ll be in a trench trying to work out where to go from here,” so said Mr Michael McKinnon, Freedom of Information editor at the Australian newspaper, on the eve of the High Court’s decision on his case.

For those unaware of why the McKinnon case (or more specifically McKinnon v Secretary, Department of Treasury [2006] HCA 45) has had such an impact, the case began in 2002 with Mr McKinnon seeking access to some treasury documents relating to tax cuts and the first-home owners program.  Treasurer Peter Costello took exception to the attempted access to these documents, and issued a conclusive certificate blocking them on the grounds that they were, to quote Mr Costello, “contrary to the public interest.”

There are many ways for a wily politician to interfere with access to documents under the Freedom of Information laws; excessive bureaucracy, skyrocketing access fees, “lost” files and general unhelpfulness being the most common.  However against the truly determined journalist there exists but one last-gasp line of defence: the conclusive certificate.  This allows the Minister in question to stop access provided that the grounds are “not irrational, absurd or ridiculous.”  It is here that McKinnon began to butt heads with Costello and the Department of Treasury, and it is here that the Freedom of Information legislation began to teeter.

McKinnon appealed against the conclusive certificate and lost. He appealed again and lost.  This continued until eventually getting all the way to the High Court in 2006.  This was to be the big decision.  The one that, despite all the setbacks, reaffirmed the place in the world of the journalist and would usher in a utopia where everyone could access anything they wanted whenever they wanted, and the government would get their long-deserved comeuppance.  In short, it was assumed by almost everyone in the journalistic community that we were standing on McKinnon’s mountain.

There were good reasons for the optimism.  The Australian Press Council had thrown their full support behind McKinnon with an amicus curiae brief, providing information to the court on his behalf.  Other members of the media and the community at large, ranging from the ABC’s Kerry O’Brien to Professor Rick Snell of the University of Tasmania, all expressed their support of McKinnon, and appeared equally to believe that he could do nothing but win his appeal.

This point of view was backed up by the fact that three of the five High Court Judges appeared to already be in favour of McKinnon.  Justices Gleeson and Callinan publically questioned the government’s motives in blocking access to the Treasury documents.  Justice Kirby was far more bellicose in his response; “Why…could it not be in the public interest to disclose a document made by the public servants who are paid by taxpayers in this country.”

However despite his initial support, Judge Callinan changed his tune come judgement time, and the saga of McKinnon versus Costello came to a close with a three-to-two High Court loss for the Australian FOI editor.  Despite hopes of mountain gazing, McKinnon’s trench became the reality.  It was upheld that, to quote McKinnon; “…as long as the reasons they give [for issuing Conclusive certificates] are not fanciful or absurd, then they’re held to be reasonable.” A precedent had been set.  And yet even as Freedom of Information began to fall from McKinnon’s mountain, the fighting had only just begun.

The Australian Press Council - perhaps not surprisingly considering their vested interest in freedom of the press and freedom of information, as well as their involvement in the case - were quick to condemn the decision and respond.  A series of articles by well known media and FOI experts were published by the Council, detailing both the perceived failures of the court ruling and possible reforms.

Press Council Executive Secretary Jack Herman was the first, stating that “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 practice [it] will be impossible to successfully challenge a Minister’s decision to refuse to disclose information, even where such information should rightfully be in the public domain.”

He went still further, saying the government’s assertion that the disclosure of information would confuse or mislead the public due to being complex smacked of “legal paternalism” and “fails to appreciate the role of the press in informing the public on matters of public interest.”

Professor of Law at Monash University, Hoong Phun Lee had long been a vocal critic of the Howard government’s approach to the handling of Freedom of Information legislation. This combined with his being the Vice Chairman of the Press Council and a specialist in FOI, meant it was only natural that he would provide his viewpoint on the outcome of the McKinnon case.  He certainly pulled no punches, stating that the High Court Judges sought “…refuge in the technical and pure legalistic approach,” and wanted “…to expunge any consideration of the fundamental values necessary for the vitality of a vigorous democracy.”

The idea that a precedent had been set by the conclusion of the case was expressed forcefully by Professor Lee, with his closing statement that “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.”  These are some of the strongest and most forceful words heard on the whole matter, but nonetheless have an uncomfortable ring of truth to them.

Press Council Policy Officer Inez Ryan summed up the ruling and the effect on the legitimacy of Conclusive certificates by simply stating “Does that mean that, as long as the minister’s reasons are not completely crazy, no-one can challenge his decision?”

Ryan and Professor Moira Patterson (also of Monash) take it a step further by suggesting changes which could reinvent the Freedom of Information legislation, undoing the damage caused by the McKinnon case verdict and the seemingly unlimited power of the Conclusive certificates.  Ryan suggests placing an onus on the government to prove that a document is exempt, inserting a clause making it an offence if documents are withheld improperly, placing more emphasis on the concept of “the public interest”, and others.  None are radical, but all seek to make things clearer and hopefully return the balance of power.

Professor Patterson’s arguments, unlike those of her Press Council colleagues, are far less vehement and far more tempered by fact and an examination of both sides of the issue.  Whilst strongly opposed to the McKinnon verdict, she understands that checks and balances are also required for Freedom of Information to be feasible.  She makes a special point of highlighting the fact that the outcome of the case, whilst a negative in and of itself, has paradoxically served a positive purpose by highlighting the need for reform to the Act, and bringing public and media attention to the difficulties being faced.

News Limited CEO John Hartigan (McKinnon’s “boss”), in a speech given at the Press Council’s Annual Address at the New South Wales State Library addressing FOI and the McKinnon case, made reference to the Charter for a Free Press, and suggested that these are points that the government and judiciary would do well to follow.  Of particular interest is the assertion that “In a truly democratic society open debate, discussion, criticism and dissent are central to the process of generating informed and considered choices.”

The Federal Opposition also highlighted the problems with the decision and the Freedom of Information legislation itself.  Kelvin Thompson, Opposition Public Accountability Spokesman highlighted what he saw as the Federal Government’s deliberate misuse of the legislation: “The sort of document they’re handing over to me, and these are the ones they say they haven’t exempted, have these ridiculous and useless sorts of pages where everything has been crossed out and they’re of no use at all.  So it’s clear to me that the Government has no intention of observing the spirit of freedom of information.”

The opinions of the varied media and experts all seem to follow the same train of thought; the concept of Freedom of Information had been challenged, and the judiciary’s decision had been found wanting.  The position of the media was - somewhat ironically - best summed up by Justice Kirby, one of the dissenting voices of the McKinnon case.  When questioned about his opinion on the verdict, Kirby quoted the fictional Sir Humphrey Appleby of British political satire Yes, Minister fame by stating that “This was put in to give the appearance of having this high level tribunal with judges and others to review but really, Minister, it gives them nothing to do.”  The phrase “Sir Humphrey Clause” had been coined, and became the catchcry of reform.

With the High Court decision going some way towards castrating media access to government documents under Freedom of Information, and the subsequent call for reform, it was only a matter of time until the waves being made were felt and responded to.  Michael McKinnon himself soon realised that even with the precedent set by the decision in his appeal case that somewhat of a loophole had been found.

“We still have scope to make FOI work,” he said in an interview with the ABC’s Media Report, “in that thankfully the judges found that every case decides the public interest to itself.  So this decision…will not be binding in terms of deciding what the public interest is.”  This means that every individual case involving public interest (the vast majority of Freedom of Information-based requests) would have to be individually decided upon by the judiciary; however McKinnon acknowledges that a conclusive certificate issued in these circumstances would still have any journalist dead in the water.

Justice Hayne made some interesting comments on the process of judicial review of the decision, which could possibly offer another possibility for future applicants that have conclusive certificates used against them.  During the case McKinnon had obtained Treasurer Peter Costello’s reasons for the issuing of the certificates under section 13 of the Administrative Decisions (Judicial Review) Act.  However, whilst Costello gave these answers in full, McKinnon did not follow through with these, instead challenging the certificate under the FOI Act.  Justice Hayne referred to the possibility of challenging the verdict on the basis of “an error of law” or “an improper exercise of power”, particularly in regards to the argument that the Treasurer had failed to take account of relevant considerations. 

Considering the limitations already in place on the review of conclusive certificates, judicial review proceedings that investigate whether the minister in question has failed to consider the right things might be of some use.

Journalist Michal Alhadeff conducted a case study of Australian FOI laws, particularly in regards to the matter of the AWB Limited scandal.   She determined that there were three core problems with Australia’s Freedom of Information framework: firstly, that the act “promises little, constraining the rights it confers with broad and vaguely defined exemptions”; secondly, “toothless review mechanisms” in terms of the lack of appeal against conclusive certificates; and finally “a culture of resistance…exists within much of the government, leading to obfuscation of the spirit of the Act.”

Alhadeff proposes numerous strategies for reform, stating that the three main things that need to be done are a re-draft of the legislation so that it is “more explicitly pro-disclosure”, a review of those rules currently in place (including the abolishment of conclusive certificates) and a change to the culture in government towards the FoI legislation, and how it should be treated.

The previously mentioned Rick Snell feels that the idea of a fully open government is “more of an aspirational goal” rather than a completely realistic one, but that what has really sabotaged the cause of Freedom of Information in Australia is the lack of a public body which works solely toward holding the government accountable in these matters.  Whilst the Press Council works towards this goal, its focus is diluted by many other tasks, and thus it is their responsibility to help found other bodies which would seek to “keep the bastards honest” as it were.

Snell suggests using some foreign organisations as models for changes that could be made in Australia.  He names the US Reporters Committee for Freedom of the Press and the Canadian Freedom of Information and Privacy Association as two examples of organisations which both represent journalists’ interests and actively campaign for the concepts of freedom of information and open government.  Whilst these organisations have been instrumental in the public campaigning for changes to FoI overseas, it is British group ‘UK Campaign for Freedom of Information’ that stand out most as a model organisation.

This group have already played a major role in altering laws in the UK, leading to the ongoing implementation of greater Freedom of Information access and accountability of government.  The Campaign also takes part in public education and training, and has the widespread support of more than 90 organisations.

Snell believes that the creation of a body with the support of the Press Council and other powerful Australian media bodies (such as the Media Entertainment and Arts Alliance), and general business and civic groups could make a significant difference in the same vein as the previously mentioned groups.  He feels that a group could agitate and push back against the government, rather than relying “…on the individual zeal of a few FoI Editors like Michael McKinnon and Matthew Moore…[or] by journalists like Kelvin Bissett,”

The question must be asked on whether change is likely to occur. Whilst McKinnon, Snell and others may agitate for change and constantly question and push the government on this issue (as indeed they should), for there to be any chance of forcing a government into changing legislation something in the status quo must give.

Snell suggests the construction of a body which will focus solely on challenging the government on these matters, and indeed this is a suggestion that seems to carry a lot of weight and support.  Others believe that a concentrated effort by the media to bring Freedom of Information and the perceived flaws into the light of public scrutiny would be enough to bring the full weight of public opinion crashing down on the Howard government and the judiciary. Others still believe that this will go still further by forcing a change of government, one that will see the removal of Peter Costello from a position where he could issue conclusive certificates.  Perhaps it did at that.

Despite Peter Costello’s justification of his use of conclusive certificates by stating that “every Treasurer…has issued conclusive certificates since the act came into existence,” the Federal government had finally bowed to pressure to look into the legislation, with Attorney General Phillip Ruddock asking the Australian Law Reform Commission to examine the legislation.  However it has been pointed out that the previous attempt by the ALRC to examine contentious legislation regarding matters of public interest was less than stellar, with the proposed reforms to the sub judice contempt legislation being universally lambasted.

The Federal Labor Party has been barracking for changes to the Freedom of Information for years now.  It has been the stated goal to introduce an amendment to the legislation that will completely remove conclusive certificates, and to further simplify and remove some of the restrictions in place (similar to some of the suggestions from the Press Council mentioned previously).  This is an idea that holds a large amount of appeal in theory.

In practice, however, Peter Costello raises an interesting point about the motives of the ALP; “Federal Opposition has the great comfort of knowing they’re not in government.  Let’s go to [former Victorian Premier] Mr Bracks, [former Queensland Premier] Mr Beattie, ask Mr Beattie to announce that policy for his re-election.  I don’t think so.  Can I say to you, all very well for the Labor Party to say that now.  Can we please have an explanation of Paul Keating, John Dawkings, Ralph Willis, George Gear, Brian Howe.  Come on.”

With brand new Prime Minister Kevin Rudd’s Labor government coming into power, it will be interesting to see whether the party line on Freedom of Information reform was just that, or whether it was a legitimate attempt at change.   The report being conducted by the Law Reform Commission, regardless of the change of government, should still go ahead.  This could serve as a catalyst for change for the federal government, with the current proposed amendment being combined with the report by the ALRC to lead to massive changes to the Freedom of Information laws.  It could also serve, however, as an excuse to delay the inevitable; the day where the government will have to confront the glaring problems with these laws, and find a way to do something about them.

Maybe Mr Costello is wrong; maybe there is a real drive by Mr Rudd and co to make changes.  Regardless of intentions however, until the changes are made and Freedom of Information in this country is brought back to a level where public interest is the foremost requirement, every day is just like the day that the High Court ruling came back: “I’m disappointed for democracy today” said McKinnon in an interview soon after the defeat of his appeal, and indeed every day that this legislation remains in its current state is another disappointing day.

One thing that is for certain is that Freedom of Information fell from the mountain when McKinnon lost his appeal.  Yet, somehow, FoI has managed to reach out and latch one fingertip on the cliff-face, holding on for dear life.  The trench looms at the bottom, waiting to swallow this important piece of legislation whole.  Every minute brings it closer to the fall, but every minute is another minute of life and another chance to right the wrongs and rescue the Act.  The journalistic community and the Australian public as a whole can only hope that that rescue arrives before it is too late.

- Tim Sweeney

(If anyone would like to see the sources used for this article please contact me; I’m not posting them up at this stage due to how many there are)