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An Opportunity Spurned: Michael McKinnon's Case

Published online by Cambridge University Press:  24 January 2025

Chris Finn
Chris Finn*
Affiliation:
Law School, University of Adelaide
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Extract

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’ 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.

Type
Research Article
Information
Federal Law Review , Volume 35 , Issue 2 , June 2007 , pp. 297 - 313
Copyright
Copyright © 2007 The Australian National University

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Footnotes

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.

References

1 Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 177 CLR 106, 137 (Mason CJ).

2 Ibid 231.

3 Ibid 139.

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); Fraser, Ron, ‘Where To Next with the FOI Act? The Need For Renewal — Digging In, Not Giving Up’ (2003) 38 AIAL Forum 57.Google Scholar

6 Australian Law Reform Commission, above n 5, [2.10] - [2.11].

7 Ibid [6.4] (Recommendation 18).

8 See, eg, Paterson, above n 4, 303; Snell, Rick, ‘Conclusive or Ministerial Certificates: An Almost Invisible Blight in FOI Practice’ (2004) 109 Freedom of Information Review 9.Google Scholar

9 It is difficult to get exact statistics. However, in 2003, the Treasurer, Peter Costello, indicated that 55 conclusive certificates had been issued between 1982 and 1986. It appears that records of the issue of these certificates were not kept after 1986: Commonwealth, Parliamentary Debates, House of Representatives, 4 December 2003, 23830–1 (Peter Costello, Treasurer).

10 Re Howard (1985) 7 ALD 626.

11 Re McKinnon (2004) 86 ALD 138, 139 [3] ('McKinnon (No 1)’).

12 Ibid.

13 McKinnon (No 1) (2004) 86 ALD 138.

14 McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70 ('McKinnon (No 2)’).

15 McKinnon v Secretary, Department of Treasury (2006) 229 ALR 187 ('McKinnon (No 3)’).

16 Ibid 198 [40].

17 Ibid 188 [1], 192 [17] (Gleeson CJ and Kirby J), 202 [54] (Hayne J).

18 McKinnon (No 2) (2005) 145 FCR 70, 74 [5] (Tamberlin J), 129 [160] (Jacobson J) and McKinnon (No 1) (2004) 86 ALD 138, 141 [14] (Downes J).

19 McKinnon (No 2) (2005) 145 FCR 70, 139 [232] (Jacobson J).

20 Ibid 140 [233].

21 Australian Doctors’ Fund Limited v Commonwealth of Australia (1994) 49 FCR 478.

22 Attorney-General's Department v Cockcroft (1986) 10 FCR 180, 190 (Bowen CJ and Beaumont J).

23 McKinnon (No 2) (2005) 145 FCR 70, 74 [5]-[6] (emphasis in original).

24 Ibid 76-7 [16].

25 George v Rockett (1990) 170 CLR 104.

26 Ibid 112.

27 McKinnon (No 2) (2005) 145 FCR 70, 92 [50] (emphasis added).

28 Ibid 89 [45].

29 McKinnon (No 3) (2006) 229 ALR 187, 190 [11].

30 Ibid 191 [12].

31 Ibid 221 [129].

32 Ibid 222 [131].

33 Ibid 202-3 [56].

34 Ibid 204 [63] (Hayne J).

35 McKinnon (No 1) (2004) 86 ALD 138, 150 [54].

36 Ibid 150 [56].

37 Ibid 152 [66].

38 Ibid 136 [34]. Observing that ‘although claims based on frankness and candour have not been well received the same cannot be said for claims based on the need for confidentiality.'

39 Ibid 150 [52].

40 Ibid 152 [66].

41 See, eg, ibid 155 [77].

42 The failure of government to respond to calls for FOI reform is well documented. One such call, which recommended the removal of conclusive certificates in relation to internal working documents, was made by the Australian Law Reform Commission: above n 5, [9.19] (Recommendation 53A).

43 Under the New South Wales Freedom of Information Act 1989 (NSW), ‘Ministerial certificates’ can be issued in relation to Cabinet documents, Executive Council documents, documents affecting law enforcement and public safety, and documents affecting counter terrorism measures and ‘shall … be taken to be conclusive evidence that the document is a restricted document': s 59(1). There are no conclusive certificates in relation to internal working documents. Similarly, the Victorian Freedom of Information Act 1982 (Vic) allows the issue of certificates (not expressly stated to be conclusive) that ‘establishes’ that a document is an ‘exempt’ Cabinet document: s 28(4). A similar provision in s 29A(2) applies to documents affecting national security, defence or international relations. Again, there is no provision for conclusive certificates in relation to internal working documents. Nor do the other State jurisdictions appear to provide for such certificates in relation to internal working documents.

44 Australian Doctors’ Fund Limited v Commonwealth of Australia (1994) 49 FCR 478.

45 See, eg, Re Porter (1988) 8 AAR 335; Re Waterford (No 2) (1984) 1 AAR 1; Re Rae (1986) 12 ALD 589, cited in ibid 484-5.

46 The effect of s 58A of the Act should also be noted, whereby the AAT's powers in reviewing a conclusive certificate under s 58(5) are recommendatory only.

47 McKinnon (No 3) (2006) 229 ALR 187, 191 [12].

48 George v Rockett (1990) 170 CLR 104, 112.

49 Freedom of Information Act 1982 (Cth) s 3(1)(b).

50 These were reproduced at McKinnon (No 1) (2004) 86 ALD 138, 114 [26].

51 See, eg, Snell, Rick, ‘The Ballad of Frank and Candour: Trying to Shake the Secrecy Blues from the Heart of Government’ (1995) 57 Freedom of Information Review 34Google Scholar; Bayne, Peter and Rubinstein, Kim, ‘Freedom of Information and Democracy: A Return to the Basics?’ (1994) 1(2) Australian Journal of Administrative Law 107.Google Scholar

52 McKinnon (No 1) (2004) 86 ALD 138, 151 [59]-[60].

53 Administrative Decisions (Judicial Review) Act 1977 (Cth).

54 McKinnon (No 1) (2004) 86 ALD 138, 114 [26].