Who would have thought Rupert Murdoch would become a champion in fighting the Howard Government over Freedom of Information? Read on.

Rupert Murdoch, freedom fighter – Part II (Part I below)

The thrills ‘n’ spills continue in the Federal Court in Canberra today in the most significant freedom of information case in 20 years.

Not that you would have heard about it. There seems to be a ban on the matter in virtually all our media. In case you missed the report we carried last week – see below – here are some details.

Michael McKinnon, the Freedom of Information Editor of the Australian, is taking on Treasurer Peter Costello, tackling his decision to issue what is known as a “conclusive certificate” to block the release of documents relating to income tax.

It was argued last week in another FOI battle McKinnon is fighting, an application for documents on the first home owners grant that is before the Administrative Appeals Tribunal that “Building -industry information given to the Treasury should not be released under Freedom of Information laws even though it was available on a publicly accessible website,” according to The Australian.

We’ll run that past you again.

“Building -industry information given to the Treasury should not be released under Freedom of Information laws even though it was available on a publicly accessible website.”

And we’ll paraphrase it for you:

The Howard Government, our elected representatives, claim the right not to release publicly accessible material that has passed into their hands. Publicly accessible material.

Worth fighting for? Sounds like it.

And look at how the Government has adopted the heaviest of heavy-handed tactics over the tax matter. Here’s what the Oz had to say on day one of the case last week:

“Peter Costello moved yesterday to lock the public, the press and lawyers out of court in a bid to suppress secret Treasury documents.

“In a case brought by The Australian’s FOI editor Michael McKinnon that is testing the limits of Freedom of Information legislation, the Government argued that lawyers should be banned from cross-examining Treasury witnesses and should be ordered to leave the courtroom during evidence…”

This is not representative government. It is unaccountable and manipulated bureaucracy – and political cowardice combined. All the hallmarks of the Howard Government, in other words.

“The Treasurer used the extraordinary step of issuing conclusive certificates to put a major extra hurdle against document release.

“The former lawyer decided Australians should never know what his department’s officers told him about how quickly the $4-a-week “hamburger and milkshake” tax cuts of the May 2003 budget would be lost to the higher taxes paid by workers on rising wages,” the Oz stated last Tuesday.

None of this, however, seems to be getting reported outside McKinnon’s own paper and its stablemates. Nothing’s turning up on Google News.

Amazingly, the Australian media is taking Sir Humphrey’s side. They’re standing up to defend what he called Freedom from Information.

Why? Firstly, because covering the yarn breaks one of the key rules of Australian journalism. You never follow another outlet’s lead – even when it is in the public interest. That might give them credibility. It’s much better for your outlet’s sake that you ignore the matter – and public interest, too.

Secondly, McKinnon is taking his action in the Federal Court – and carrying on his other FOI wars in the AAT and against departments – with the support and encouragement of the Australian’s Editor, Chris Mitchell, News Limited’s Australian boss John Hartigan and, presumably, the big boss himself, Rupert Murdoch. And we can’t have anything that threatens Rupert’s bogeyman image, can we.

Rupert Murdoch is a strange and complex beast. There is much to dislike about him – but he is a damned good newspaperman. He always has been and always will be.

Murdoch knows what the public wants – even though us Crikey types might find it sometimes offends our refined sensibilities. Sales of the London Sun have slipped of late – but it’s first editor under Murdoch, Larry Lamb, hit the nail on the head with his riposte to criticism from the broadsheets when he damned them as “the unpopular press”.

In this battle, Murdoch’s troops are on the side of the angels. They are fighting for ordinary punters.

Where is the rest of the media? The virtuous Fairfax? The independent ABC? The fearless Margo Kingston?

News Limited are tackling the Howard Government – and tackling the Howard Government when every Mike Moore wannabe is parroting Murdoch/Howard/Bush/Iraq/Schaeffer/Labor conspiracy theories.

And how are they tackling the Government? McKinnon has five main matters to deal with.

They were used in a private FOI action back in 1985 against Treasurer Paul Keating bought by a solicitor called Howard. John Howard. Heard of him? He’s gone onto bigger things.

This is an extraordinary story. It deserves a run.

Here’s what’s at stake, according to McKinnon’s editor’s old paper, the Courier Mail:

“A victory for The Australian would have a profound impact on FOI laws. It would overturn the 20 year-old precedent allowing ministers to use conclusive certificates to block access to government documents.

“The precedent for the use of such certificates was set during a failed FOI battle mounted in 1985 by current Prime Minister John Howard when he was in Opposition.

“Mr Costello has conceded that five previous federal treasurers have used conclusive certificates to shield government documents.”

The full yarn is here.

Interestingly, it also contains these comments:

“Labor has promised to ban the use of conclusive certificates.

“Opposition Leader Mark Latham has taken a swipe at several Howard Government ministers for their recent propensity to use “conclusive certificates” to deny access to documents without reason.

“He said government information should only be exempt from FOI if it related to national security, had been to Cabinet or if its release would breach an individual’s privacy. Ministers would still be allowed to refuse a request for information, but they would first have to argue why and be obliged to prove the disclosure would be contrary to the national interest, the Opposition Leader said.

“He said Labor would also insert into the legislation a clause ensuring that ’embarrassment to the government’ could not be used as a reason for withholding information.”

It would be nice to see a bit more support from the sidelines from Latham, his Shadow Treasurer, Simon Crean, and legal spokesperson Nicola Roxon.

Democrat Andrew Murray is a man who cares deeply about ethical issues and process, too. A word from him as his party’s accountability spokesman or their guy for matters legal, Brian Greig, wouldn’t go astray either. Or from that paragon of virtue, Bob Brown.

Meanwhile, if no one is prepared to do the work, more power to Michael McKinnon. And Mitchell. And Hartigan. And yes. More power to Rupert Murdoch.


July 11, 2004: Rupert Murdoch, freedom fighter – part I

News Limited is making a fascinating foray into the political and media culture of this country. It’s a great story – but other outlets don’t seem to have noticed. One of the most significant court cases for the Australian media in the past two decades begins this week.

Remember this item from February, Peter Costello’s Dirty Little Secret? It told how The Australian’s Freedom of Information editor, Michael McKinnon, had spent 10 months using FOI in pursuit of documents relating to the tax burden on ordinary workers – only to be frustrated when the Treasurer issued what is known as a “conclusive certificate”.

A conclusive certificate, Butterworths legal reporting service says, has the effect of establishing that any given document is exempt from the Freedom of Information Act.

And as McKinnon reported at the time, “administrative law experts… said the only occasion on which they could recall a minister issuing a conclusive certificate involved former industrial relations minister Peter Reith’s denial of Labor access to consultants’ reports on the Howard Government’s waterfront reform program in 1997-98”.

Costello claims putting out the papers “has the potential to lead to confusion and to mislead the public”. An attempt to get them through the Administrative Appeals Tribunal failed – so now McKinnon has upped the ante. He and a high-powered legal team will be walking into the Federal Court on Monday to challenge the Treasurer’s decision.

He has the backing of his bosses. The Oz’s editor, Chris Mitchell, is heavily on side. News Ltd chief executive John Hartigan has already given Costello a belting over the matter in a speech to the Australian Press Council you can find here. And if Harto’s on side, then it’s surely not too much to think aloud that Rupert himself must feel everything that’s going on is hunky dory.

The matter will be fascinating for observers of Australian politics and media watchers – and the timing couldn’t be better.

First, the politics. An election is how many weeks away? September 18 and October 23 are the current favoured dates. Whatever. Talk about topical.

The Government has made tax a key election battleground. Tax cuts headlined the Budget – but tax cuts that only helped a favoured few. They won’t want to see their policymaking getting the full forensic treatment now.

Opposition families spokesman Wayne Swan has had plenty to say on marginal tax rates and bracket creep in the past. “The Government’s tax and social security changes have caused nearly a doubling in the number who face punitive marginal tax rates,” he told the Labor National Conference earlier this year.

However, as the echoes of Mark Latham’s primal scream therapy of the past week slowly fade away and policy returns to centre stage, will the ALP be keen on anything that even hints that their current “trust us, it’s a real beauty”, isn’t an adequate tax blue print? Unlikely.

Whatever way the poll goes, Peter Costello wants to be leader of the Liberal Party. Great timing again.

Costello is the ogre in this case – the hard guy spending taxpayers’ money to ensure taxpayers can’t discover the details of just how those very same funds are taken away from them. That will go down a beauty on the job application for the top spot. Great look, Mr Treasurer.

Could anything be more of matter of legitimate public interest? Ten points each for McKinnon, Mitchell and Hartigan. Ten points for that tribune of the people, Rupert Murdoch, too. And another 10 points to each of them for what this case will do to their rivals.

Make no mistake. This matter is the most important Freedom of Information case in the legislation’s 22-year history.

McKinnon outlined how the Act came about in a recent speech:

“When the Freedom of Information Act came into force in Australia 1982 the aim was to vastly improve the relationship between citizens and governments. Removing the shroud of secrecy over decisions by government agencies on policy and administration would allow Australians to judge the impact of decisions on their lives and the reasons for government decisions. Government secrecy can only foster the growing contempt felt by many Australians for our political processes and there should be little surprise this disenchantment should occur when an FOI Act fails in its object of extending as far as possible the right of access to information held by government.

“Democracies require transparency and openness and secrecy hampers the ability of citizens to participate and judge politicians and governments. Effective FOI laws open the government’s activities to scrutiny, discussion, comment and review – an intrinsic right in a democracy. Further, politicians are to some extent focused on achieving re-election and are therefore strongly motivated to reduce criticism. Often the price paid by politicians for support from interest groups are poor policies which if exposed to the light of public scrutiny would not stand the test of fairness nor garner broader electoral support.”

He quoted two former Prime Ministers:

“Malcolm Fraser noted … that ‘people and Parliament have the knowledge required to pass judgement on the government…(and)….too much secrecy inhibits people’s capacity to judge the government’s performance.’ In 1983, former Prime Minister Bob Hawke said: ‘Information about Government operations is not, after all, some kind of `favour’ to be bestowed by a benevolent government or to be extorted from a reluctant bureaucracy. It is, quite simply, a public right’.”

Then McKinnon made the logical leap:

“The extent of government secrecy, by its very nature is difficult to quantify. What is obvious however, is the current Federal Government has systematically sought to prevent scrutiny on some of the most important issues in Australia. The Tampa ‘babies overboard’ controversy that dominated the last election campaign, the weapons of mass destruction rationale for Australia’s involvement in the Iraqi War and Australia’s knowledge of mistreatment of prisoners are all issues where government accountability has been lessened because of secrecy.”

Too bloody right, mate.

In fairness to McKinnon, we should also quote his next two sentences:

“I hasten to add, secrecy is not confined to the Federal Government nor to politicians of any particular parties. State Governments also ignore the intent of FOI legislation but constraints of time will mean I focus on the failings of the Commonwealth FOI Act today.”

That’s what we’re concentrating on in this item, too. And there can be no doubt that the Howard Government has refined media management and the control of news and information flows in a way no other administration in Australia has even tried. Remember what we said in How the PM Got Economic Policy Wrong last year.

“What’s been the greatest unsung triumph of the Howard Government? Unity.

“Remember the paralysis that gripped both the Liberal Party and its Coalition with the Nationals at various times during John Howard’s first term as Liberal Leader in the 1980s? Remember the way in which backbenchers crossed the floor from time to time during the Fraser years to vote against government legislation?

“Nowadays, the time when Liberals prided themselves on having the conscience vote that the caucus ballot denied Labor MPs seems as long gone as Menzies himself. Most Liberals have probably forgotten that crossing the floor was what once differentiated the Party from Labor.

“The Howard Government’s unity has been helped by the way it clamped down on alternate sources of information from government instrumentalities. Under Labor, various inquiries and semi-judicial tribunals used to cause havoc by releasing reports critical of government actions. The Howard government seems to have taken the line that such alternative views are a dangerous form of democratic bureaucracy.

“Secrecy has become its forte – but it has learned from the Kennett government and keeps the issue as far as possible from the media and public eye…”

Control freakery and spin have been the Howard Government’s stock in trade. It’s been assisted in this work by ruthless politicisation of the higher ranks of the public service, the shift to short term contracts for other public sector roles and even by the unintended disruptions to complex machinery of public administration bought about by otherwise worthwhile privatisation and outsourcing.

McKinnon and News Ltd are therefore not only bringing a case that gives them a great yarn, but one that is of enormous significance to every other media outlet. It’s a case that can benefit every Australian. For all of us.

McKinnon wrote about the case in this story last Friday. No other outlet has picked it up, however, according to a search of good old Google News.

That’s a pity – and exposes one of the greatest failings of our media in keeping governments (or any other entities, for that matter) accountable. Few outlets seem prepared to touch another outlet’s stories – no matter how good they are.

OK. It’s fair to imagine Fairfax – or what Fred Hilmer’s left – feeling hesitant about touching the story. Now. But sooner or later it surely must. Margo? And what about our fearless and independent national broadcaster? Where’s the ABC?

This is a story that’s in the public interest and in every media outlet’s interest, too.

Is there something about this matter that sticks in their throats – as much as it sticks in the throats of the Treasurer, the Prime Minister (for surely he was in the loop on this decision) and their opposition counterparts?

It’s a great yarn. Rupert Murdoch, freedom fighter. Strange but true. After all, you probably find odder things in the News of the World.

Disclosure: The author is commentating for Sky News Channel. Christian Kerr can be contacted at christian @crikey.com.au