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Good journalists prefer facts, not fiction, to beat up on governments and bureaucrats. But getting facts could now become very difficult.

The Freedom of Information Act was supposed to give the public and the media access to documents held by the government, but it doesn't seem to be working out that way.

And this week's High Court ruling won't help.


The Australian newspaper has lost its four-year battle to get access to a raft of federal treasury documents. …The Treasurer, Peter Costello, has staunchly fought the newspaper's bid all the way to the High Court…Today, in a two-three decision, the High Court bench has found in his favour.

— The World Today, ABC Radio, 6th September, 2006

Read the High Court's judgment.


Back in 2002, The Australian's FOI editor Michael McKinnon, wanted to know how much extra tax was being collected because of bracket creep - and how many wealthy Australians were rorting the first home buyer's scheme.

But treasury refused McKinnon's FOI request - and Treasurer Peter Costello issued what's known as a conclusive certificate, saying that releasing the documents wouldn't be in the public interest.

McKinnon challenged - and a High Court majority upheld the Treasurer's decision.

As News Limited's CEO John Hartigan put it…


…freedom of speech – including freedom of the press – is under renewed and intensifying threat in Australia…Increasing attempts to foil FOI requests, the widespread use of suppression orders and the inadequacies of the new national defamation regime are, with the proliferation of spin and political correctness, undermining the public's right to know how government, institutions and business are managed…

— News Limited media release, 'High Court rules against Freedom of Information Case', 6th September, 2006

Read News Limited's media release 'High Court rules against Freedom of Information Case'.


As McKinnon told the ABC it's hard to see how the decision leaves any room for journalists to easily uncover information that might embarrass a government minister.


… any minister now confronted with an FOI request for information that shows they've failed in their duties can simply issue a conclusive certificate and that's it... This is the problem with a conclusive certificate. The tribunal doesn't get to look at the reasons in the public interest: for release and against release. It only gets to look at very narrow reasons why it shouldn't be released in the public interest.

— The World Today, ABC Radio, 6th September, 2006


Though one small ray of hope in the judgment is that ministers' conclusive certificates can still be appealed in the Federal Court.

But the Freedom of Information legislation wasn't meant to set up a lawyer's picnic: it was meant to allow you and me to get documents held by the government.

As The Australian said...


The most immediate consequence of the decision is its emasculation of the FOI Act...This will have a chilling effect on journalism.

— The Australian, Hiding Behind the Law, 7th September, 2006


Now that's an editorial we can heartily endorse and full credit to the paper and to News Ltd for taking on this expensive and important challenge.

But for now the politicians who want to keep those closed doors shut tight have won.

So what will journalists have to do to get their hands on information that the government wants to hide?

Remember the Herald Sun's Gerard McManus and Michael Harvey?

Their crime was to publish information – overwhelmingly in the public interest - which made former veterans' affairs minister Danna Vale look stupid and angered the Government. With the help of leaked documents they revealed that Canberra had rejected plans to raise entitlements to war veterans by $650 million, but intended to dress up a decision for minor amendments as a win for old soldiers.

— The Courier Mail, Ruddock goes too far in hunt for media leak, 15th October, 2005


McManus and Harvey were charged with contempt for refusing to name their leaker.

Their plight is still before the courts.

The FOI judgment raises the prospect of more McManuses and more Harveys looking for leakers.

Even in John Howard's water-tight Canberra, it's possible that some public servants might still want to get their information into public hands.

In February 2003, customs’s management at Sydney Airport was given a thorough report into security there...It revealed gaping holes, from the employment of baggage handlers and guards with criminal records, to theft and pillage, drug trafficking and other criminal activity...Nothing was done…the report was leaked to the media. All hell broke loose...the upshot: the Customs Department security expert who wrote that report, Alan Kessing, has now been charged with leaking it to the media.

— The Sydney Morning Herald, Humour? You need a licence for that, 3rd-4th December, 2005


Kessing denies he leaked the report. His case comes before the court again in November and he faces jail if he's found guilty.

It seems there are obstacles at every turn, to getting information from the government.

Murdoch University's Johan Lidberg has written a PhD thesis comparing Freedom of Information in South Africa, Sweden, the United States, Thailand and Australia.


In many respects Australia is the worst case in the study. Not only did it score lowest, it also projects what turns out to be a misleading and even false image of having a functioning mature FOI system as part of a mature democracy. The study clearly shows that the Australian FOI regime is completely dysfunctional and not worthy of [a] country that prides itself of being a mature democracy.

— 'Freedom of Information Banana Republics and the Freedom of Information Index' by Johan Lidberg

Read Johan Lidberg's PhD thesis 'Freedom of Information Banana Republics and the Freedom of Information Index'.


Johan Lidberg concludes that when it comes to freedom of information, Australia remains a banana republic.