A black Christmas for whom? Christian Kerr explores the latest developments in the ongoing FOI battle between The Australian and the Howard Government.

According to the legal fraternity, either The Australian’s Freedom of Information Editor, Michael McKinnon, or Peter Costello and Alexander Downer could be set for an early Christmas present.

It’s expected that a ruling will be handed down in the first half of the week on McKinnon’s bids to gain access to Treasury documentation on the impact of bracket creep on ordinary taxpayers and, sexier still, the Government’s own legal advice on the status of the Australians being held Guantanamo Bay.

Costello and Downer have blocked the release of the material by both issuing what are known as conclusive certificates.

Butterworths legal reporting service states that a conclusive certificate has the effect of establishing that any given document is exempt from the FOI Act.

When the Treasurer refused to release the tax documentation, McKinnon reported “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”.

If McKinnon wins the case, it will be a significant victory for all Australian media outlets and the general public.

His boss, News Limited Chief Executive John Hartigan, outlined the issues at hand in a speech to Australian Press Council at the beginning of December 12 months ago that’s worth recapping:

“When the Commonwealth Freedom of Information Act came into force 21 years ago this week, it was defined as a law which would – and I quote – ‘extend as far as possible the right of the Australian community to access information in the possession of the government’ – unquote. It was to open government activities to scrutiny, discussion, review and criticism, and to enhance the accountability of the executive.

“Great idea. Pity about the result. Sadly, today the FOI Act is in desperate need of reform.

“The laws are not working effectively, to the detriment of all sides. Not only do media companies face exorbitant costs, endless delays, and spurious claims of exemption, but governments themselves are failing to take value from the investment in good governance that FOI can provide through early warnings of the waste of public funds, fraud, and failures in policy and service.”

Hartigan made these comments on the Treasury FOI requests:

“Treasury has refused [to release the material], saying it is not in the public interest to release the information because it can – I quote – ‘create or fan ill-informed criticism,’ or quote ‘confuse and mislead the public’… access was denied because release could – quote – ‘create confusion and unnecessary debate’, and ‘encourage ill-informed speculation’.

“These arguments are an insult to all Australians, yet the Treasurer has in the past couple of days defied common sense, logic, and the spirit of FOI law, to issue what are known as conclusive certificates.

“This effectively means any documentation, which may or may not reflect on the Treasurer’s competence, is hidden from the public forever. And the Treasurer has done so because he says these documents, paid for by the taxpayer, are not in the public interest.

“In our view, this is an act of profound contempt…”

Blud oath, Harto – particularly given that in the 12 months since the remarks were made the Government has been re-elected, thanks largely to its claim to be superior economic managers.

Peter Fray

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