The Australian didn’t exactly play up the victory in last
Saturday’s paper, but many lawyers and free speech advocates are becoming increasingly excited
about News Ltd’s High Court challenge over FOI laws, which is now backed
by Fairfax and Rural Press.

A limited discussion about FOI laws and the long-running campaign by The Australian’s
FOI editor Michael McKinnon has now turned into what is shaping up as
the High Court’s first ever comprehensive look at the much broader
notion of “public interest”.

Given the flurry of suppression orders that courts have been dishing
out in recent years, we now have the prospect of the High Court finally
entering the fray and setting out a position on exactly what
constitutes the “public interest”.

Peter Costello’s counsel, Dick Tracey, got clobbered during the brief 17 minute hearing in Sydney last Friday and the
News Ltd bloke didn’t even have to speak. How’s this for an encouraging exchange if you’re interested in free speech:

KIRBY J: Mr Tracey,
by saying it is truly exceptional and an extreme case, you are making it all
the more interesting to us.

MR TRACEY: Well,
I am not there yet because, your Honour, that can be tested under 58(5),
but not determinatively.

GUMMOW J: What
is the content of this phrase “the public interest”? I see it appears also in section 33A, does it not?

MR TRACEY: Yes,
it does, your Honour. There are
various exemptions that refer to it but…

GUMMOW J: We
would need to know, if we granted leave, in due course how this concept works
its way through this statute.

MR TRACEY: Well,
your Honour, there is an important difference with 36 and 58(5), and that
is that it is cast in the negative, “contrary to the public interest”, whereas
the other provisions are more inclined to speak in terms of the acceptance that
disclosure would be contrary to the public interest.

GUMMOW J: There
are a number of interests.

MR TRACEY: Yes.

GUMMOW J: How
you reach a situation where you say this is the public interest is not
immediately apparent in this Act.

MR TRACEY: Well,
your Honour, the difference with this is that the…

KIRBY J: It
may be that the scheme of the Act is, by reserving it ultimately to the
Minister and a report to Parliament, it renders the Minister accountable
through the electoral process and the government accountable through the
electoral process, but that is, as it were, in the extreme case. The normal scheme, as you pointed out, is to
render government accountable through the provision of the documentation.

MR TRACEY: Yes,
your Honour, and that was where the answer was heading, that it is
exceptional in the sense that everything else the Tribunal does under this Act
is determinative. In this instance the
Tribunal may make a decision, the Minister may disagree and the Minister can
resist, and all that then follows is that the Minister is accountable to
Parliament. So that it is, in our
submission, for that reason right at the fringe of freedom of information.

KIRBY J: But
then, as I said before, that is exactly the sort of issue that this Court
should look at. I mean, we are not
interested in the run-of-the-mill routine ordinary case. They are not really our proper province, but
cases in this scheme at the very fringe and border of accountability seems to
me is the very sort of matter we should examine.

And so it went. Leave for the appeal was indeed granted and the High
Court is now crawling all over this concept of the public interest.
Fingers crossed that they go for a broad definition.

Peter Fray

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