The effect of the McKinnon Case

The McKinnon's case1 was like a stepping on a landmine for both the media and the ministers. The media because they want the information, and the ministers' because they use conclusive certificates to block the information. Some history is needed first for McKinnon's case. Michael McKinnon was the Freedom of information editor of the Australian at the time this case was heard. In 2002 he applied for information from the Australian tax office for documents relating to the taxation bracket creep2 and the First Home owners scheme.

During the end of 2003 and beginning of 2004 the Treasurer, Peter Costello MP, issued conclusive certificates under section 36(3) of the FOI act. The grounds were that the disclosure of the documents would be contrary to the public interest. ii Costello gave seven reasons4 as to why the conclusive certificates were issued. iii Then McKinnon took the matter to the Administrative Appeal Tribunal (AAT) for a review of Costello's decision. The AAT found that the majority of the documents were exempt.

Mckinnon appealed to the Federal Court in 2005 and then to the full bench of the High Court in 2006. The question of law was whether the AAT when it carried out its review under section 58(5) of it FOI act, it had given proper consideration to all the relevant evidence and other material before it and to competing aspects of the public interest raised in the evidence or argument before it. iv The majority of the High court, Hayne J, Callinan and Heydon JJ agreed with the decision of the federal court and dismissed the appeal.

Hayne J said that the AAT's task was to see whether the conclusion given in the certificate (that it would be against the public interest) can be supported by logical arguments. These arguments when taken together would support the conclusion given the in the certificate. The focus of the AAT is solely on the grounds of the conclusion and if they are reasonable grounds. v He defined "reasonable" as not being non "irrational", "absurd" or "ridiculous". So if a conclusion was non absurd, it doesn't make it automatically reasonable.

Documents that are prepared for possible responses to questions in Parliament should remain confidential because there exposure would threaten the Westminster system of government, id est responsible government. x So from the legal side, McKinnon's case was able to clarify the review powers of the AAT, and also what are reasonable grounds to issue a conclusive certificate because it is against the public interest. But it also proved that conclusive certificates are very hard to overturn. So long as they are drafted correctly then the AAT won't overturn them.

xi Kirby J commented on this by giving a comparing the AAT to yes minister. He said, "the first any answer might be that this was a Sir Humphrey Clause: 'This was put in to give the appearance of having this high level tribunal with judges and others to review but really, Minister, it gives them nothing to do. '"xii However even if McKinnon did win, and the AAT did support the claim that the grounds were unreasonable, something stupid happens. Section 58A (1) of the FOI Act provides that the Minister can decide not to revoke a certificate by tabling a statement to parliament.

So really the AAT can't do much and only gives a recommendation to a minister. xiii All this begs the question, If a conclusive certificate is issued on the grounds of non disclosure because of non public interest concerns , what else can I do? Well Hayne J in the case suggested that McKinnon could have applied to the Federal Court under judicial review, since he got the information from the Treasurer under the Administrative Decision (Judicial Review) Act, instead of appealing to the AAT. He could have argued on the grounds of an error of law or an improper exercise of power.

xiv The High Court has considered the possibility of judicial review of freedom of information decisions before. In the Shergold case5, the Court held that the phrase "establishes conclusively" does not oust the jurisdiction of the Federal Court to judicially review a Minister's decision to issue a certificate in a freedom of information case. xv However the costs involved may deter people from pursuing this option. Well now we have covered all the legal considerations that arose from McKinnon's case. So it's time to consider some other issues.

During the lead up to the McKinnon's cases, Labor took an interest in conclusive certificates. In June 2006, Labor Senator Kerry O'Brien asked the government Ministers to disclose how many certificates had been issued in the past 10 years they have held office. The reason why he chose to ask in parliament is that the information on how many conclusive certificates were issued is strangely absent from freedom of information annual reports. xvi Thirteen Certificates were disclosed from the period of October 1996 to 2006.

Five were from the Treasury, three from the Prime Minster and Cabinet, two from Employment and Workplace Relations, one from Agriculture, one from Foreign Affairs and one from Veterans Affairs. Information on controversial topics like David Hicks and workplace refused were refused on conclusive certificate grounds. xvii Bannister also found that Labor when it held government during the time of 1983 to 1996, issued at least 29 conclusive certificates. That was how many cases the AAT had that involved Conclusive certificates.  

Pretty much conclusive certificates have been around for awhile and governments when in office, Liberal and Labor issue them when they feel like it. Johan Lidberg conducted a thesis on the how FOI works in Australia. He analysed what the legislation was supposed to do, what is actually did, and the spin of the ministers in saying that FOI works as intended. The important thing of this thesis is the results he obtained. * None of the three requests generated information within the framework (the only information obtained was incomplete and the department refused to do a further search on the matter).