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The Free­dom of Inform­a­tion Act

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was passed by the Fraser gov­ern­ment in 1982 to “give to mem­bers of the pub­lic rights of access to offi­cial doc­u­ments of the Gov­ern­ment of the Com­mon­wealth and of its agencies”.

The gen­eral idea behind most FOI legis­la­tion is that the bur­den of proof falls on the body or entity that is asked for inform­a­tion, not the per­son ask­ing for it. The gov­ern­ment has to show why such inform­a­tion should not be made avail­able, rather than someone explain­ing why they should have it.

In the Aus­tralia of 2006, such ideas are laughable.

Since 9/11, west­ern gov­ern­ments have pur­sued a whole range of dra­conian policies severely cur­tail­ing their cit­izens’ liberty and free­dom all under the murky guise of “fight­ing ter­ror­ism” and, laugh­ably, pro­tect­ing

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Sim­il­arly, Aus­tralian Min­is­ters are able to keep inform­a­tion from the pub­lic by issu­ing “con­clus­ive cer­ti­fic­ates” with the explan­a­tion that it would not be in the “pub­lic interest” to dis­close the inform­a­tion reques­ted. This is man­dated by sec­tion 36(3) of the FOI Act.

This far­cical situ­ation was allowed to con­tinue by the High Court today, as they upheld the view of the Treas­urer that it was not in the pub­lic interest to release doc­u­ments detail­ing the first home own­ers scheme and bracket creep.

Why would it not be in the pub­lic interest? The doc­u­ments per­tain to tedi­ous fin­an­cial and eco­nomic data and details. They do not con­cern national secur­ity or defence, and thus don’t fall within the scope of “pro­tect­ing Aus­trali­ans from ter­ror­ism”. Whose interest is Peter Cos­tello actu­ally protecting?

The decision is par­tic­u­larly sur­pris­ing as Justice Cal­l­inan voted to uphold the Treasurer’s view des­pite com­ment­ing “I don’t know how you could argue these were not mat­ters of pub­lic interest” in the ini­tial spe­cial leave hear­ing. Had he voted the other way, the con­clus­ive cer­ti­fic­ate would have been inval­id­ated, and the doc­u­ments made available.

We live in per­il­ous times where the fed­eral gov­ern­ment can effect­ively jus­tify almost any policy under the smokescreen of “ter­ror­ism”, and block any inform­a­tion under the façade of the “pub­lic interest”. When will Aus­trali­ans wake up?

UPDATE: The SMH’s FOI Editor, Mat­thew Moore, writes up a much more detailed art­icle on this issue