Federal FOI has been in a vegetative state since its inception in 1982 and on life-support since the early 1990s. Most FOI watchers thought the coup de grace was delivered three weeks ago, when the full bench of the Federal Court handed down its decision on the Australian newspaper’s McKinnon vs Treasury case.
The wake was booked, the burial ceremony had been organised, but the Federal Freedom of Information regime in Australia was given one last lease on life four days ago, when News Limited announced it would appeal the case to the High Court of Australia.
The case involves a request by the Australian newspaper to access the documents that drove the policy process involving tax bracket creep. Bracket creep is when tax cuts for the well-off also affect middle income earners. In October 2002, Michael McKinnon, the Australian’s FOI editor, sought documents relating to the ‘higher tax burdens faced by Australians and/or projections of revenue-collections increases from bracket creep.’ What could be more in the public interest?
In December 2003 (more than a year after the initial request – the Act requires departments and agencies to make a decision within 30 days), Treasurer Peter Costello used the papal-like powers granted to him under the Federal FOI Act. Costello issued a ‘conclusive certificate’ effectively blocking the release of the requested documents. The certificate claimed that it is not in the public interest to release the documents since it would ‘create or fan ill-informed criticism’, may ‘confuse or mislead the public’ and would encourage ‘ill-informed debate’. Well, allow me to inform the Treasurer that at the moment there is no debate regarding bracket creep because the public has no un-spun information at all to base any opinions on.
It is, of course, much easier to govern if you don’t have to deal with well informed citizens who can come up with all sorts of inconvenient questions and opinions. McKinnon and the Australian took the case to the Administrative Appeals Tribunal. The AAT backed the Treasurer. Next stop was the Federal Court.
It is not often you get to say this in Australian FOI history (which in itself says something about how the system works) but the McKinnon case is a valiant and courageous quest, one where News Limited is prepared to invest the time and the dollars to pursue the matter through the courts.
The cost involved is astronomical. In an email to all other heavyweight news organisations in Australia, Warren Beeby, Group Editorial Manager at News Limited, appealed for financial and legal support. In the mail he pointed out that if the High Court rejects their appeal, the total cost for taking the case all the way will have been ‘some $300 000.’ It’s no wonder FOI appeals are not common in Australia, and this in a case that should really be paid for by the government, considering the clear public interest. There is a provision in the FOI Act for the Attorney General to waive the court costs – but I’m not holding my breath.
Research being undertaken at Murdoch University has confirmed the deficiencies in the FOI legislation on show in this case. A comparison of international FOI regimes in Australia, Sweden, USA, South Africa and Thailand has shown that, as a journalistic tool, our Federal FOI delivers nothing.
The Murdoch University research project aims to create the base for the first International FOI Index, ranking countries on how their FOI regimes function in practice, and what they deliver in terms of independent access to quality, un-spun, government-held information. The Australian data shows an FOI system operating more at the level of a ‘banana republic’ than a fully-fledged democracy. The three FOI requests looked at in the study which were put to Federal departments generated no information whatsoever. The most common way to discourage requests is to quote excessive processing fees with no guarantee what documents will be released. In one of the requests the initial processing fee was $2692.
The US FOI system, which used to be regarded with envy by Australian journalists, is also scoring appallingly in the study. September 11 and the War on Terror are slowly but surely suffocating many FOI regimes. Indeed the only FOI system in the study that is delivering seems to be the Swedish one.
Australia’s FOI history has been peppered with cases of stonewalling, delays, and outright denial of access. For all its fancy dressings of transparency and openness, it is fair to conclude that FOI in Australia was never intended to work. The Act in its current form is on the government’s side, not the user’s, and doesn’t have the legal clout to back up its aims.
The most disappointing aspect of Australia’s dysfunctional FOI regime is that it effectively removes what could have been an important tool for political accountability. There are several examples in the last few years where a properly working FOI system could have prevented abuse of political power. The most obvious example is the children overboard affair in the 2001 Federal election campaign.
So, what now? With Federal FOI on its last legs, is resurrection possible? A powerful lobbying tool has existed since 1996 when the Australian Law Reform Commission recommended 106 amendments and changes to the Federal FOI Act. These recommendations have to date been comprehensively ignored by the Howard Government.
Journalists, media owners, academics, politicians and the general public: let us form freedomofinformation.org and usher in Freedom of Information Mark II in Australia – bigger, better, stronger and more effective than its ineffective predecessor. FOI is (nearly) dead, long live FOI!
And let’s hope for a legal miracle in the High Court.
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