THE HIGH Court’s ruling that the Treasurer, Peter Costello, was right to withhold Treasury documents under the Freedom of Information Act has been condemned by members of the legal community.
The 3:2 decision in the case of McKinnon v Secretary, Department of Treasury in the nation’s superior court has set a clear precedent for the way government departments will be able to classify internal working documents.
“The conclusive nature of the High Court’s decision means that, regardless of the political arguments, or even the legal ones, the standard has been set for the public interest exemption for internal working documents of the federal government,” Brisbane barrister David Topp said.
Melbourne-based Holding Redlich media lawyer Nicholas Pullen agreed, saying that “the effect of this decision … is to widen the scope for all agencies that are subject to FOI to refuse access, concerning the process of internal working documents”.
Calls were made following McKinnon’s case from both the legal profession and the federal opposition for reform of the law, particularly in the area of conclusive certificates, which were issued in response to a claim by The Australian newspaper for access to working documents in regard to tax cuts and bracket creep.
The heated response to the decision by Shadow Attorney-General Nicola Roxon included proposed changes such as abolishing conclusive certificates, ensuring the public interest test is applied more thoroughly and consistently, and establishing a pro-disclosure culture, by changing the objects of the Act.
“I certainly can’t disagree with those sentiments,” Pullen said. “It’s just that … the Opposition always [argues this line], whether it’s at a federal level or a state level, because that’s the best way [they] can get information about how the government of the day is working.”
Costello leapt at Roxon’s proposal for the abolition of conclusive certificates, relying on a predictable tactic of political deflection.
“If Labor believes that, then eight state Labor and territory governments will be introducing such legislation tomorrow, won't they?” he asked.
Attorney-General Philip Ruddock preferred to focus on matters of national security in dismissing Roxon’s suggested reforms.
“She argues there must still be protection for national security and cabinet documents. This hardly amounts to a commitment to abolishing conclusive certificates,” Ruddock said.
Costello seemed to rely on the excuse that history was in his favour.
“Every Treasurer with the exception of John Kerrin, who wasn't Treasurer for very long, has issued conclusive certificates since the Act came into existence,” he said.
The Treasurer also made the distinction between draft working documents and final versions, which are released to the public, to bolster his defence.
“These are drafts which are replaced. And because they are drafts, quite often they are not even accurate and that is why the FOI has an exemption for working documents,” he said.
The differing reactions of political and legal commentators to the issue of FOI law highlights the difficulty that exists in reforming the legislation.
“Legislation will be the only way to change the outcome for future cases,” Topp said. “As for the prospects of that happening — [I] won’t be holding [my] breath.”
Pullen also found fault with the way in which the public interest was evaluated under section 36(3) of the Act in the Administrative Appeals Tribunal.
“In a sense it’s a full stop … The application is confined [in the instance of a conclusive certificate] to determining whether there exists reasonable grounds for the claim of exemption — but you can’t look behind whether the disclosure would be contrary to the public interest — which is the catch 22,” Pullen said.
It was also argued that the High Court’s decision ignored the object of the legislation, which Pullen called a “very narrow interpretation”.
“It’s a very strict reading, and this is a huge complaint I have, that it doesn’t take into account the overriding object of the FOI Act. The object is to have documents available, on request, that are reasonable.”
The reasonableness of the McKinnon request seemed obvious to Pullen.
“If this is dealing with taxes, then what could be more in the public interest than how policy … and decisions are formulated in relation to taxes? Tax is very close to a lot of our hearts,” he said.
Pullen classified the decision as “another nail in the coffin in what you might say is such a rancid affair in relation to FOI, because it’s just becoming so bogged down in the bureaucratic nightmare and red tape, that you’re actually not getting any information at all”.