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Tuesday, March 12, 2013

Bid for High Court to look at Governor General's FOI protections

In the March issue of Anne Summers Reports I've written a potted history of Karen Kline's so far unsuccessful attempt to use the Freedom of Information Act to access documents concerning the administration of the Australian Honours awards.
(The Secrets of Australian Honours page 6.)

It is a story familiar to regular readers here except this newsie bit, that Ron Merkel QC has taken up the case after the Full Federal Court decision went against Kline in December.

An application seeking special leave to appeal to the High Court was lodged on 15 February. Special leave is a formidable hurdle. The grounds for appeal, if the case gets that far, include whether the Federal Court erred in holding that any document that relates to a substantive  power or function of the Governor General is not a document that relates to matters of an administrative nature within the meaning of s 6A, and is thereby excluded from coverage of the Act.

A meaty subject worthy of the High Court's attention.

Merkel QC, a highly respected former judge of the Federal Court and one of Australia's leading human rights and civil liberties practitioners who has a string of commendable wins to his credit, appeared for Heather Osland in one of the few, and the most recent, Freedom of Information cases to make it to the High Court. The decision in that one made my 30 years of notable FOI cases list.

I don't know anything of his thinking on the Kline case other than by taking it on he clearly thinks there is something in it.

However in a major speech in December Merkel noted rights trends including three recent high profile cases where the courts have read the Constitution as requiring an "extraordinary limitation on Executive power", with power wound back in these cases "in a way not really thought possible in the 107, 108 years that preceded these decisions." 

Could Merkel's observation then that "we do have the reality of a very substantial Constitutional protection of fundamental rights and freedom in Australia" presage an interesting argument in the High Court regarding a constitutional limitation on exclusions from the Freedom of Information Act?

Anne Summers Reports is a terrific new publication, free and available for subscription here. Anne can only make it work with donations that help with the $300,000 annual cost.

Give it a thought.

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