7
SEPTEMBER 2006
Australia: High Court Sides with Bureaucrats,
Rolling Back Right to Information
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.
