Australia: High Court Sides with Bureaucrats, Rolling Back Right to Information

7 September 2006

The Australian High Court yesterday in a decision in McKinnon v. Secretary, Department of Treasury dealt a crushing blow to the country’s 24-year-old Freedom of Information Law, setting a precedent that permits government bureaucrats to deny public requests for information on the basis of broad claims of potential harm. The High Court found that Treasurer Peter Costello properly withheld information about the application of tax laws to wealthy Australians, on the basis of the minister’s broad certification that disclosure could compromise confidentiality of decision-making and the candor of officials involved.

According to the High Court Justices, “[if] one reasonable ground for the claim of contrariety to the public interest exists, even though there may be reasonable grounds the other way, the [certificate] will be beyond review. The act provides no basis for any balancing exercise.” In essence, this decision means that ministers can withhold information, even where disclosure is clearly in the public interest, as long as there is also a colorable claim that disclosure could harm the national interest. In their dissent, Chief Justice Murray Gleeson and Justice Michael Kirby argued that by allowing claims of official confidentiality to trump the rights of applicants, the government could effectively bar all public access to information held by the executive.

The specific information at issue was the subject of a FOIA by The Australian in 2002, and concerned data not on individual taxpayers, but rather on how the government applies the tax laws. In particular, The Australian was seeking information about the so-called “bracket creep” in income taxation scales and about the first home buyers’ scheme, which, according to media reports, has been abused by some rich Australians.

The Australian ruling, which protects the deliberations of government officials at the expense of the right of citizens to review the decisions of their leaders, comes on the heels of recent efforts by Indian bureaucrats to weaken that country’s Right to Information Act. Last week, however, under pressure from advocacy groups and members of the public, the Indian government withdrew its proposed amendment, which would have excluded from disclosure file notings that reveal vital information about official decision-making. Although yesterday’s decision set a damaging precedent for freedom of information in Australia, civil society and media groups as well as representatives of the Labor and Green parties have vowed to fight the rollback and are now calling for reform of the law to restore the right of requesters to access information about government decision-making.


McKinnon v Secretary, Department of Treasury [2006] HCA 45 (6 September 2006)

“NZ says our FOI laws are arcane,” The Australian, 9 September 2006

“FOI – the morning after,”, 7 September 2006

“Court backs secrecy of tax details,” The Age, 7 September 2006.

“Appeal dismissal sets a worrying FoI precedent,” The Age, 7 September 2006

“High Court backs bracket creep secret,” Matthew Moore, The Sydney Morning Herald, 6 September 2006

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