Press freedom suffered a set-back yesterday when The Australian
lost its appeal to the full bench of the Federal Court in a split 2-1
decision which supported Peter Costello’s use of conclusive
certificates to reject freedom of information requests. The paper’s FOI
editor Michael McKinnon produced a short report on the judgment here and we’re still waiting for the 100-page document to appear on the Federal Court’s website.

Federal taxpayers have so far burned about $800,000 fighting the case
through the AAT and into the Federal Court and News Ltd has dropped an
estimated $400,000 for no result.

However, Justice Conti’s dissenting views did provide hope as McKinnon
pointed out in the final paragraph of his story: “Corrs Chambers
Wesgarth partner Tom Brennan, who represented The Australian,
said the dissenting judge’s opinion left strong grounds for an appeal to the
High Court.”

Yes, but is News Ltd really interested in spending even more money
fighting the Howard Government at a time when media ownership laws are
being reviewed? It’s a difficult decision for CEO John Hartigan because
legal experts believe there are very good grounds for an appeal and the
law as it stands means that conclusive certificates can be used
too easily to stop FOIs. Any challenge can be beaten in the AAT by one public servant
standing up and saying: “This shouldn’t be released because it will
confuse the public.”

The Australian produced Alan Rose, a former secretary of the
Federal department of Community Services and president of the
Australian Law Reform Commission, as an expert witness to debunk the
arguments put up by Costello’s bureaucrats but this didn’t cut it with
two of the judges.

The last time News Ltd went to the High Court was on an Andrew Bolt
defamation case which they lost, ending a painful and expensive $2.5
million legal battle for the company.

However, News Ltd did have a very important High Court victory on free speech
over the Theophanous case in the early 1990s which is very neatly
summarised by Richard Ackland in this talk
he gave to Free Speech
Victoria in 2000. Let’s hope the idealism of hoping to repeat this
effort overcomes the dollars it will cost to mount the challenge to
these ridiculous restrictions to the way our FOI laws operate.

Peter Fray

Get your first 12 weeks of Crikey for $12.

Without subscribers, Crikey can’t do what it does. Fortunately, our support base is growing.

Every day, Crikey aims to bring new and challenging insights into politics, business, national affairs, media and society. We lift up the rocks that other news media largely ignore. Without your support, more of those rocks – and the secrets beneath them — will remain lodged in the dirt.

Join today and get your first 12 weeks of Crikey for just $12.


Peter Fray
Editor-in-chief of Crikey