An Opportunity Spurned: Michael McKinnon's Case
| Published date | 01 June 2007 |
| Author | Chris Finn |
| DOI | 10.22145/flr.35.2.5 |
| Date | 01 June 2007 |
| Subject Matter | Article |
AN OPPORTUNITY SPURNED: MICHAEL McKINNON'S
CASE
Chris Finn*
Australians, it is said, live in a representative democracy. As citizens of that democracy
they are ultimately able to hold their political representatives to account via the
electoral process. In the interim between electoral episodes they form the views upon
which that holding to account will be based. At the same time, they participate in and
evaluate governmental processes in a variety of ways, some of them statutory, some of
them via the Parliament of the day, and many of them via the media, lobby
organisations, interest groups and other proxies.
Informational transparency is central to this holding to account. This was famously
recognised by the High Court in the so called 'freedom of political communication'
cases in 1992. Those cases constituted the first explicit judicial recognition that 'the
sovereign power which resides in the people [and] is exercised on their behalf by their
representatives' 1 was more than simply a political doctrine, but was in fact a
constitutional fundamental capable of limiting, as it did in those cases, Commonwealth
legislative power.
The High Court expressly commented on the centrality of informational
transparency to any genuine exercise of electoral choice. McHugh J stated that: 2
The electors must be able to ascertain and examine the performances of their elected
representatives and the capabilities and policies of all candidates for election. Before they
can cast an effective vote at election time, they must have access to the information, ideas
and arguments which are necessary to make an informed judgment as to how they have
been governed and as to what policies are in the interests of themselves, their
communities and the nation. … Only by the spread of information, opinions and
arguments can electors make an effective and responsible choice
Mason CJ observed that:3
Absent such a freedom of communication, representative government would fail to
achieve its purpose, namely, government by the people through their elected
representatives; government would cease to be responsive to the needs and wishes of the
people and, in that sense, would cease to be truly representative.
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* Senior Lecturer, Law School, University of Adelaide. My thanks are due to the anonymous
referee for their comments on an earlier draft. The remaining deficiencies are the sole
responsibility of the author.
1 Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 177 CLR 106, 137 (Mason
CJ).
2 Ibid 231.
3 Ibid 139.
298 Federal Law Review Volume 35
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In short, any real electoral choice must be an informed choice.
The Freedom of Information Act 1982 (Cth) ('the Act') came into operation a full
decade prior to these statements of the High Court. But the parallels with its twin
rationales of democratic accountability and citizen participation are striking.4
It is doubtful, however, that these high ideals have been met. Rather, both
Commonwealth and State freedom of information ('FOI') Acts have been subject to
sustained criticism for the inadequate informational access rights that they provide.5 In
part, this is due to the broad ranging exemptions to access contained within the Acts;
in part it is also due to the conservative interpretations of those exemptions given by
individual FOI decision makers in the first instance and by tribunals and courts upon
review. Executive preferences for, and agency cultures of, secrecy and non-disclosure
have remained largely unaltered by 25 years of FOI legislation, and those preferences
and cultures have gone largely unchallenged by the decisions of courts and tribunals.
In the result, the public's 'right to know' has become little more than a cipher. While
individuals are generally able to access their own personal files successfully under FOI
legislation, broader 'public interest' requests lodged by newspapers, opposition
politicians and by lobby groups face enormous difficulties.6 Large cost burdens are
imposed by agencies upon such requestors, broad exemptions are claimed for key
documents of interest and the use of conclusive certificates allows Ministers or
agencies reluctant to release documents to pre-emptively determine the question of
'public interest' against any such release.
'Public interest' is a key concept in FOI Acts. However, it is a complex and multi-
faceted concept, which is implemented in a variety of ways in the various exemption
provisions and which is subject to two key tensions within these Acts. First, there is the
question of the substantive content of 'the public interest' in relation to FOI release.
While FOI advocates draw upon the 'right' of access conferred by s 3 of the Act and
stress the fundamental democratic interest in access to information, and hence the
release of sought after documents, to further political discussion, it is evident that the
statutory rights to access information actually conferred by FOI Acts are of a very
qualified kind. In particular, the various exemption provisions expressly qualify and
limit those access rights. These exemptions are predicated upon assumptions that
release of documents will not always be in the public interest, democratic
accountability notwithstanding. Taken together, they constitute an extensive 'shopping
list' upon which a Minister or agency can draw if they are minded to refuse release.
There is perhaps an even more fundamental tension in relation to the 'public
interest'. This is simply the question of who gets to decide what is in the public interest.
While FOI Acts provide a broad legislative framework, the legislation in itself is
usually not determinative. Rather, the public interest for or against release in response
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4 For a discussion of these rationales, see Moira Paterson, Freedom of Information and Privacy
in Australia: Government and Information Access in the Modern State (2005) 9-13. The objects of
the FOI Act are set out in s 3 of the Act and notably s 3(1)(a) includes 'making available to
the public information about the operations of departments and public authorities'. See also
Re Cleary (1993) 18 AAR 83, 87.
5 See, eg, Australian Law Reform Commission, Open Government: A Review of the Freedom of
Information Act 1982, Report No 77 (1995); Ron Fraser, 'Where To Next with the FOI Act?
The Need For Renewal — Digging In, Not Giving Up' (2003) 38 AIAL Forum 57.
6 Australian Law Reform Commission, above n 5, [2.10] - [2.11].
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