Linda Kirk (SA, Australian Labor Party) Share this | Hansard source

I rise this evening to talk about freedom of information. As most of us are aware, the strength of our democracy rests on the ability of citizens to cast an informed vote at the ballot box and in order to do this information is the key. But there appears to be a predisposition within the higher levels of the Australian government to favour secrecy and nondisclosure—that is, a culture of suppression of information has become endemic. It is for this reason that we have freedom of information laws. The Commonwealth Freedom of Information Act, the FOI Act, had as its original aim to extend as far as possible the right of the Australian community to access information in the possession of the government of the Commonwealth. Without accountability there cannot be confidence that the executive government and the public servants who serve the executive are doing the right thing.

However, the High Court decision last week in McKinnon v Secretary, Department of Treasury has resulted in the 24-year-old FOI Act being rendered virtually useless in gaining access to sensitive government material. At the centre of this decision was Treasury information detailing revenue projections from tax bracket creep as well as fraud alleged to be occurring as to first home owners grants. The freedom of information editor of the Australian, Michael McKinnon, hoped to discover just how much tax the government really was handing back from bracket creep, where rising wages push workers into higher tax brackets, and the extent to which the first home owners grant scheme was being rorted, or possibly helped fuel the property boom. This is information that Mr McKinnon was seeking. It is hard to imagine information that it would be more in the public interest to disclose.

The Treasurer, Mr Costello, defended his decision to deny access to these documents on the grounds that they were in draft form and were working documents. The High Court of Australia agreed with the Administrative Appeals Tribunal, which had previously found that the Treasurer, Mr Costello, did have reasonable grounds to impose what are known as conclusive certificates on two sets of Treasury documents. The High Court found that ministers, such as the Treasurer, can issue conclusive certificates if they have ‘reasonable grounds’ to argue that the disclosure would run counter to the public interest. All justices of the High Court found that there was no provision under the existing FOI Act for a review of the merits of a minister’s decision to issue a conclusive certificate. Under the FOI Act a minister may issue a certificate that establishes conclusively that a document is exempt from disclosure. The damaging potential of conclusive certificates at the federal level in Australia means that there is, in effect, no way to monitor their use. Ministers, with all of the political interests that we are aware of, can issue conclusive certificates and as a consequence be the final arbiters of what is disclosed and what is concealed.

Under section 58(5) of the FOI Act, once a conclusive certificate is issued any appeal faces an almost impossible test. Just one public servant needs to say that the public interest is served by not granting the request to disclose. Indicating the unbalanced nature of the test, two justices of the High Court stated:

... so long as there is anything relevant to be said in support of the view that disclosure would be contrary to the public interest, an applicant ... must fail.

In other words, any old excuse will do when it comes to denying access to these documents. It does not matter if it contains little weight just so long as it contains some weight. And it does not matter if there are countervailing arguments, even if they are of far greater weight, in favour of giving access.

So instead of promoting access to government material, FOI has been left to the sole discretion of the relevant minister. This creates unlimited potential for the abuse of the conclusive certificate process. The High Court decision has triggered renewed calls for changes to the FOI Act, which has been the subject of many reviews and recommendations for reform. Three reports from the Commonwealth Ombudsmen have pointed to inconsistent approaches by federal agencies to FOI requests. After this decision of the High Court, those agencies that had previously adopted a cooperative approach to FOI requests will be likely to change their approach. As the High Court said, the act’s ‘express and unmistakably clear language’ allows for this narrow and technical decision—and it paves the way for other ministers of the Crown to follow Mr Costello’s example and keep sensitive information secret from the public.

The decision dilutes the laudable objective of Commonwealth FOI laws and gives a green light to government secrecy. Particularly alarming is the fact that the information at the heart of the High Court’s decision was widely regarded by Treasurer Peter Costello as trivial, yet the government spent about $1.5 million of taxpayers’ money keeping secret the documents on tax bracket creep and potential rorting in the first home buyers scheme.

In contrast to our highest court, the superior courts in Canada and New Zealand have taken quite a different approach to the interpretation of their FOI laws. These courts have taken every opportunity to elevate the objectives of FOI laws above any black-letter interpretation of the various provisions. So, for example, information that the Australian government fought for four years to keep secret would be available in New Zealand within just 24 hours.

When we are dealing with FOI, the balance should always be weighted in favour of disclosure and the public interest. Our High Court failed to give adequate weight to the aims of the FOI Act—namely, to extend as far as possible the right of the Australian community to access information in the possession of the government of the Commonwealth.

The decision is quite a concerning one for journalism. Reporters will now increasingly be forced to rely on unofficial leaks—which, when they come from federal public servants, have the potential to breach the Commonwealth Crimes Act. It is an even more disturbing decision for the Australian community as a whole because, with this decision, it is difficult not to conclude that the freedom of information laws are now effectively lost as an avenue for making governments open, transparent and accountable.

The Australian Labor Party believes that freedom of information is a cornerstone of our modern democracy. We have promised to revamp the FOI laws and have also said that, when elected to government, we will abolish the use of conclusive certificates.