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Panpa Bulletin : September 2006
September 2006 PANPA BULLETIN | 17 NEWS The Australian's freedom- of-information editor, Michael McKinnon, be- lieves that despite the High Court upholding Treasurer Peter Costello's use of a conclu- sive certificate to block access to departmental documents, a way has been left open to chal- lenge the decision. McKinnon thinks it might be possible to appeal against the use of a certificate using a judi- cial review where Government Ministers would have to give their reasons for blocking ac- cess in terms of public interest and be required to explain why information should not be re- leased in the public interest. McKinnon also believes that a close reading of the findings of one of the majority judges who backed Costello suggests there is scope for potential appeals against conclusive certificates in the Administrative Appeals Tribunal (AAT), before which The Australian has already ap- peared -- and lost. The position that News Limited, publisher of The Australian, will take follow- ing what has been a costly legal fight aimed at protecting the public's right to know, should become known in the next few weeks. Fairfax Media, publisher of The Sydney Morning Herald, The Age and The Australian Financial Review, has been fi- nancially backing News Limited in the long-drawn out appeal process. The legal fight began in 2002, when The Australian's re- quest for information from the Treasury under the FoI Act was personally denied by Costello. Media companies and legal experts believe the 3-2 High Court decision which was deliv- ered on September 6. It means that Australia's 24-year-old Freedom of Information Act is rendered virtually useless in gaining access to sensitive gov- ernment material. The decision rejected an ap- peal by McKinnon against the blocking of requests he had made for access to documents giving details of bracket creep and the number of rich people claiming the first home owners' grant. Despite a dissenting judg- ment from Chief Justice Murray Gleeson and Justice Michael Kirby, the majority upheld a ruling by the AAT that it did not have the power to decide whether the release of the docu- ments sought by McKinnon was in the public interest. The court agreed with the tribunal, which had found that Costello had reasonable grounds to impose conclu- sive certificates on two sets of Treasury documents. The chairman of News Ltd, John Hartigan, said the deci- sion was "extremely disappoint- ing", not just for The Australian newspaper but for Australians everywhere who value freedom of information and freedom of speech. It meant that freedom of speech was under intensify- ing threat. "At issue were some funda- mental rights to know how the nation is governed and to hold elected representatives ac- countable for their decisions," Hartigan said. "With this decision it is not difficult to conclude that the freedom-of-information laws are now effectively lost as an avenue for making govern- ments open, transparent and accountable." ThechairmanoftheAustralian Press Council, Professor Ken McKinnon, said the court had "failed to give adequate weight to the aims of the FoI Act to ex- tend as far as possible the right of the Australian community to access to information in the possession of the government." Fairfax Media corporate af- fairs director Bruce Wolpe said the freedom of information laws "had just been flattened by a Mack truck driven out of Canberra. "We call on parliament to act courageously to strengthen the law and restore the most effec- tive tool we have in ensuring the accountability to the people of governments they entrust with political power." A freedom-of-information expert at the University of Tasmania, Rick Snell, said the High Court's narrow and tech- nical decision paved the way for other ministers to follow the Treasurer's example of how to keep sensitive information secret. "They have opened the gates for conclusive certificates," he said. "It means there will be de- creasing use of the act by peo- ple like us." Asked on the ABC's Media Report program if he thought the government would now use more conclusive certificates to suppress information, Michael McKinnon said he believed it extremely likely. They were already using cert- ificates and it appeared that, with the High Court ruling, he had lost a lot of other requests that were awaiting the outcome of the appeal. The FoI process was already "drowning" in lots of ways. "The problem the govern- ment's got it is that it now has to justify its secrecy at every turn because I think the Australian public would rightly be left with a view that if they don't release documents, what have they got to cover up? "I think we need an account- able government and one where we have access to the truth about what it's doing with taxpayers' funds." Defending his position, Costello told the Media Report a conclusive certificate could be issued where there were rea- sonable grounds that disclosure would be contrary to the public interest. "The AAT has found there were reasonable grounds, the Full Federal Court found there were reasonable grounds, and that decision was upheld by the High Court. That's what hap- pened. The High Court said that the AAT got it right." FoI: the ght is not over New Zealand's Ministry of Justice officials were drafting a media relations handbook for staff without con- sulting the media. Editors representing news- papers, magazines, radio and television won their case when they suggested consultation be- fore the handbook was finalised. A Ministry draft will be shown to them in two months' time. The handbook was one of the concerns raised by editors in the Media Freedom Committee of the Commonwealth Press Union New Zealand Chapter when they met Ministry offi- cials mid-August. MFC chairman Tim Pankhurst said the meeting did not make as much progress as hoped but at least the editors were able to register their major concerns. Besides the lack of consultation on the handbook, the concerns included prompt access to supp- ression orders made by the courts, and the refusal of some court officials to give even rou- tine information unless the re- porter had been in the court. Pankhurst said he thought the Ministry officials accepted the concerns in principle but seemed to be raising all sorts of practical difficulties. Another meeting has been set for October. Media relations ruckus McKinnon thinks it might be possible to appeal against the use of a certi cate using a judicial review where Government Ministers would have to give their reasons for blocking access
November December 2006