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Friday, June 29, 2012

"Public interest" no simple matter

In the context of the Rinehart interest in Fairfax, Murdoch's troubled times and faint rumbles from Canberra, Richard Ackland in the SMH and elsewhere today muses on the imprecision of terms currently being bandied about such as "public interest" and ''fit and proper person'' tests for media ownership. In a broader context, those who ply the legal practitioner trade have passed the latter. And access to information folk are well acquainted with the former.
''The public interest'' is a phrase sprinkled through legislation with gay abandon. It sounds democratic and noble, but at the end of the rainbow it has to be interpreted by a judge, or a cluster of judges - a recipe for uncertainty, because the judges themselves are uncertain...In the government's issues paper on a cause of action for serious invasion of privacy, ''public interest'' appeared 57 times. In the Finkelstein report, it was 85 times, the same number of times it was mentioned in the Convergence Review (including 13 times on one page). No doubt it is a popular rubric because it artfully allows plenty of imprecision and circularity in its application....Really, a public interest test is fine, as long as no one tries to define it."
Definition starts with the notion of what action or decision best contributes to the good order and well being of the community as a whole, but that opens all sorts of trails and branches in search of factors relevant to the matter at hand.

Hence all that rubbery stuff, Richard, and the struggle with grey when black and white would be preferable- if only we could find it.

Of course in his trade some have worn the public interest badge proudly, apparently oblivious of what it means. Who will forget the Deputy Editor of Sydney's Daily Telegraph defending the publication of what at the time, the Telegraph insisted were photos of Pauline Hanson some 30 years previously:
the ‘public interest.’
When questioned about the precise public interest involved in old photos of compromising positions she said ‘That's for our readers to tell. That will be determined by the number of people that buy the paper’.  (Media Watch, 23 March, 2009). And of course they weren't of Hanson at all.

Freedom of information reforms in Australia in recent years have seen parliaments to varying degrees have something of a go at definition, or at least an attempt to spell out considerations that favour disclosure in the public interest (still leaving open other possibilities), those that favour non-disclosure, and some that are irrelevant in deciding whether to grant or refuse access. Within certain parameters still plenty of room for argument and lawyering, but something of an improvement on pre-reform days.

The Queensland Information Commissioner for example has reams of guidance but it's not for the faint-hearted. OAIC Guidelines include this non-definitive list of public interest factors favouring disclosure. And of course there is a statutory list of factors on the other side.

  1. FOI Act promotes disclosure
    1. inform the community of the Government’s operations, including, in particular, the policies, rules, guidelines, practices and codes of conduct followed by the Government in its dealings with members of the community
    2. allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official[6]
    3. reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct
    4. reveal the reason for a government decision and any background or contextual information that informed the decision
    5. enhance the scrutiny of government decision making
  1. inform debate on a matter of public importance
  2. promote effective oversight of public expenditure
  3. allow a person to access his or her personal information, or
    1. the personal information of a child, where the applicant is the child’s parent and disclosure of the information is reasonably considered to be in the child’s best interests
    2. the personal information of a deceased individual where the applicant is a close family member (a close family member is generally a spouse or partner, adult child or parent of the deceased, or other person who was ordinarily a member of the person’s household)
  1. contribute to the maintenance of peace and order
  2. contribute to the administration of justice generally, including procedural fairness
  3. contribute to the enforcement of the criminal law
  4. contribute to the administration of justice for a person
  5. advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies
  6. reveal environmental or health risks of measures relating to public health and safety and contribute to the protection of the environment
  7. contribute to innovation and the facilitation of research.

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