In a sad day for Australian democracy the Australian High Court in a three ( Hayne, Heydon and Callinan JJ) to two (Gleeson CJ and Kirby J) decision rejected Michael McKinnon’s and News Ltd appeal in relation to conclusive certificates issued by Secretary for the Department of Treasury under the FOI Act (Cth).

The majority decided the issue on a narrow and technical consideration of the requirements for section 58. The majority judges were content only to require that the government demonstrate that any documents covered by a conclusive certificate was supported by reasons that were reasonable and rational as distinct from something that is irrational, absurd or ridiculous.

The result of this case is a bill of over $1 million for News Ltd, the protection of a number of rapidly ageing and low level documents, and the opening of an extremely large, and easy to use, loophole for this and all future governments.

Indeed Callinan and Heydon JJ in a joint decision went out of their way to endorse four out of the seven grounds used by the Government to justify the issuing of a conclusive certificate as being reasonable and rational. These four grounds will now be taken up as a judicially endorsed list that will appear on most future conclusive certificates.

In a surprise set of comments Justices Callinan and Heydon were scathing and dismissive of the type of evidence presented by McKinnon’s expert witnesses.

While Gleeson CJ and Kirby J found in favour of McKinnon they also were very restrained and kept to fairly narrow grounds in their reasoning. Their endorsement of the general objectives of the FOI Act was muted and will only give a little hope to those battling with FOI officers and in the AAT. Neither Chief Justice Gleeson nor Justice Kirby decided to use this rare, costly, and unlikely to be repeated opportunity firmly to entrench the status of the FOI Act or offer clear instructions how the Act is to be interpreted. Similar opportunities have not been passed up by the highest courts in New Zealand and Canada.

This decision will discourage most journalists and media organisations from actively pursuing FOI requests.

Peter Fray

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