High Court low point for FOI

The High Court decision in McKinnon v Secretary of the Treasury is a major disappointment for open government advocates. On the other hand it will be welcomed by a government whose commitment to openness and transparency has been tarnished by its track record over the last 11 years.

In essence the decision highlights well known deficiencies in the Federal FOI Act. However the 3-2 majority verdict is sure to provide comfort and ammunition for those in government (and their legal advisers) who look for opportunities to frustrate the “public right to know”.

Ten years ago the Australian Law Reform Commission in a comprehensive report called for reform of the Federal FOI Act. That report has never been acted upon. Those reforms and many other proposals for enhancing transparency and accountability have never passed first base with the present government.

One of the report’s recommendations was that a minister should not be able to conclusively certify that it was contrary to the public interest to disclose an internal working document. While the report accepted that government at the highest level should be able to make judgements of a conclusive kind where matters of national security were involved, giving ministers such powers over “thinking process” documents was inconsistent with the objectives of FOI legislation.

This power and how it is exercised was the central matter before the High Court.

The majority found no error of law in earlier decisions in the matter. That is, on review of a decision to issue such a certificate, the Administrative Appeals Tribunal is limited to examination of whether reasonable grounds existed for such a conclusion.

The documents sought in this case are now over 4 years old. They would reveal information about “bracket creep” – the extent to which inflation has added to government coffers as wage increases put Australians in higher tax brackets – and information about fraud in the first two years of the operation of the ‘First Home Owners’ grant scheme, particularly its use by high wealth individuals.

The Treasurer certified that 39 of 40 documents about bracket creep were exempt, and all the 47 documents held on the grant scheme were exempt, in whole or in part.

Estimates are that New Limited (with contributions from other media organisations) may have spent $1million on this challenge and that the Government may have spent $1.5million. The High Court ordered costs against News Limited.

The Court said that the proper interpretation of the Act prevented the Administrative Appeals Tribunal from undertaking any independent assessment of the merits of the claims in the certificate. The only issue to consider was whether the decision to issue the certificate was a decision open to a reasonable person.

The majority decided that the requirement was to consider all relevant factors. However after reviewing what had been done, they concluded that it was open to reason on the basis of the claims put forward in the Treasurer’s certificate, that disclosure would be contrary to the public interest.

Justices Callinan and Heydon, in a joint decision (and in support of a separate decision by Justice Hayne) considered the grounds in the certificate and said that it was not unreasonable to contend that the following claims were relevant to a judgment that disclosure was contrary to the public interest: that disclosure would jeopardise candour and affect keeping of proper records; that the documents were tentative in that they were concerned with matters not settled and recommendations not adopted; that “documents prepared for possible responses to questions in Parliament should remain confidential because their exposure would threaten the Westminster system of government”. They were not impressed with arguments that suggested it would be contrary to the public interest to disclose documents simply because of "ongoing sensitivity", because the public would not be able to understand the context or technical jargon, or that the information might be misrepresented or abbrievated".

Chief Justice Gleeson and Justice Kirby, in the minority concluded that an error of law had occurred, and would have granted the appeal.

Some of the views expressed by those in the majority, are in stark contrast with comments made by the NSW Court of Appeal in a separate recent case, WorkCover Authority v Law Society of NSW (2006) NSWCA 84. The Court of Appeal was required to consider the appropriate test in determining whether disclosure of internal working documents was, on balance, contrary to the public interest.

The Court emphasised the importance of the objects of the Act, (the High Court majority said that even though the limitation on the review powers of the Tribunal were apparently contrary to the objects of the Federal Act, the express words used in the Act to describe the Tribunal’s powers had to be taken at face value), and rejected formulaic, theoretical propositions about the public interest and non disclosure test developed in the pre FOI era of closed government. The NSW Court of Appeal is of the view that simply because a document is a draft does not dictate that it is contrary to the public interest to disclose it.

The NSW FOI Act contains more restricted powers to issue conclusive certificates. The Premier only has the powers, and they do not extend to the issuing of a certificate regarding the internal working document exemption. Few certificates have been issued in the 17 years since the Act commenced. Federally, any minister can issue a certificate. There is no reporting requirement so no information is available on the number of certificates issued.

Will the Federal Treasury (and others) be breaking out the champagne in the light of this decision? Most likely.

Having successfully argued in 1985 against disclosure of budget documents to John Howard MP, in a case that laid down what came to be known as “Howard factors” for non disclosure of internal working documents), they have now again successfully supported the Howard Government’s efforts to put some significant barriers between the public and Treasury thinking process documents, even those as in this case that are 4 years old.

Treasury Secretary Dr. Ken Henry should be very pleased. He told the Canberra Times in March (according to this report in the Australian) that if the High Court decided against the Government, the only answer would be for Treasury officials to not record important steps in decision making in order to protect such documents from those who in his view, sought access in order to embarrass the Government. The best way to deal with these sort of applicants would be to be able to issue conclusive certificates.

The High Court decision has now left open to Dr. Henry and others who share his views (the Treasurer Peter Costello is on the public record as saying that FOI is primarily about getting access to information about an individual’s own affairs, and release of documents containing advice will inhibit provision of frank advice in future), to avoid the prying eyes of those who seek to know what the Government knows about important matters concerning the development of policy. All that is required will be to simply arrange for the issue of a conclusive certificate by a minister citing vague and general grounds about why disclosure would be contrary to the public interest, confident in the expectation that there will never be independent testing of those claims.

Foreign Minister Downer told an audience last week (see the link to the Australian above) that his party is proud of the fact that it runs an open government and that it had introduced FOI legislation in 1982.

Many would suggest its been downhill ever since, with FOI languishing without appropriate leadership, enforcement and resources, and as demonstrated in this case, some fairly conservative views in the Federal Courts about open government.