Once again Crikey has been excluded from tomorrow’s Federal Budget lock-up. So, should Crikey race off to the Federal Court to seek an urgent review of that decision before the media bunkers down in windowless rooms on the Hill for five or six hours tomorrow?
The answer to that question depends on the decision making process that led to Crikey’s exclusion from the lock-up.
Last Friday, in an email written by a Treasury official at 5.29pm, Crikey was informed that its “request to attend the lockup has been unsuccessful.” And noted, the email, from Ray Gavin, the Manager of the Liaison Unit in Treasury, the “decision is in accordance with practice adopted in previous years and with the criteria set down by the Treasurer.”
There are a number of issues that arise from Mr Gavin’s email. The first relates to the use of the word “decision”.
When ministers, public servants or other officers of the Commonwealth make decisions that impact on individuals, companies or groups, they can often be challenged under the Administrative Decisions (Judicial Review) Act, commonly known to lawyers as the ADJR.
Under the ADJR a decision made by a Commonwealth official or minister can be challenged by a person who is ‘aggrieved’ by the decision on a range of grounds. These include a breach of the rules of natural justice, that there was no evidence that justifies making the decision, the decision is unreasonable or that irrelevant considerations have been taken into account in the making of the decision.
And there are some decisions which are not reviewable under the ADJR, including decisions about national security, but not the budget lock-up.
So could Crikey seek a review of the Treasurer or Treasury’s decision to exclude it from the budget lock-up under the ADJR?
Well let’s assume (it’s just an assumption remember) for a moment that the decision itself in this case is one that falls under the ADJR – it’s an administrative decision to decide who gets into the budget lock-up and who doesn’t. We need to work out how the Treasurer or his officers in Treasury came to the view that Crikey, unlike other online media organizations, is not able to participate in the budget lock–up.
If the decision was purely political, or motivated by a dislike of Crikey, or made under a misapprehension that Crikey is not a media organization in the same way that for example, The Financial Review is, then the decision might well be flawed and therefore open to a court challenge.
It stands to reason that decisions about which journalists and media organizations are allowed to attend the budget lock-up should be subject to some review, if not under the ADJR, then pursuant to some other administrative law principle.
You can bet your life that if a Treasurer of this country, tired of being campaigned against by a multi billion dollar media organization, decided that the best form of revenge was excluding them from the budget lock-up, the lawyers would be beating down the doors of the Federal Court today to make certain their client was not left out in the Canberra cold come budget day.