Freedom from information

From a few weeks back.

The High Court decided in 1997 – the case was Lange v the ABC – that Australia’s constitution necessarily implies “a limitation on legislative and executive power to deny the electors and their representatives information concerning the conduct of the executive branch of government.”

This was the unanimous view of the seven justices. It provided “a binding statement of constitutional principle.” The justices understood that the electorate would not be able to vote in an informed way if a government denied access to information merely to avoid political embarrassment.

You would think that this would be enough to settle the freedom-of-information case currently being considered by the High Court. After all, when Peter Costello denied the media access to documents about taxation bracket creep and government grants, he was acting totally unreasonably. Neither his stated reasons – nor his real desire to protect the government from political embarrassment – justified his action. Under the 1997 decision, Costello’s decision preventing the disclosure of documents would fail. As Justice Michael Kirby said, these documents were not national secrets. As Chief Justice Murray Gleeson acknowledged, the information sought was a matter of public interest.

But neither Lange v ABC nor the statement of principle it provided was mentioned in last Thursday’s hearings. Nor was Costello’s antagonistic attitude to freedom of information requests, although his attitude is openly discussed by Treasury officers.

You can see this anti-information philosophy at work when Costello issued a conclusive certificate withholding documents from the media which were already in the hands of the public. His general reluctance to share documents is shown in Treasury’s latest annual report. In 2004-05, the department allowed full access to information in six cases, part access in seven and no access in nine.

The government’s attempt to prevent the Australian Press Council from appearing as amicus curiae in Thursday’s hearings demonstrates the government’s distaste for the media. Its attempt in the case to treat Hansard records of parliamentary debate as confidential also illustrates its cavalier approach to restricting access to information

Instead of these matters of high principle, the High Court is considering whether an applicant’s right to seek a review of Costello’s adverse decision exists in practice or is merely an apparent right. It is to decide if the reviewing tribunals, which upheld Costello’s decision, erred by failing “to take into account and balance public interest considerations favouring disclosure of a document”. This technical approach means that the High Court’s decision – even if it overturns the process adopted by the reviewing tribunals – may have no practical impact on whether or not the material applied for will be released.

To explain the absence of the Lange v ABC opinion, we have to view High Court processes in the way that we measure restaurants. It is not enough that the kitchen used last Thursday is the same as that used in 1997. It is not sufficient that the ingredients – in this case, the government’s ability to withhold information of public interest – might be similar. And it does not matter that the tools – legal principles – are ostensibly the same. If the cooks are different, the food won’t be the same.

And the cooks have changed. Of the seven High Court justices who issued their binding statement of constitutional principle in 1997, five have gone. Only Bill Gummow and Michael Kirby remain. And because Gummow is not sitting on the current case, only Kirby can represent the views held by that High Court. But even Kirby is reluctant to use the language of implied constitutional rights and limitations employed to protect Australians from ever more powerful governments. His recently appointed colleagues have no appetite for these concepts.

But even this court is starting to appreciate the overweening power of government. The five justices have complained that they have not been allowed to see the information denied to the media. And notwithstanding Costello’s view that they may, the law will not allow them to sight the documents. After all, it would not be in the national interest.

It is nice to see that the High court has had to suffer what voters have regularly had to put up with. It is just a pity that most of them refuse to recognise concepts which would help them find a solution.

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17 years ago

Well, there is certainly some validity in the main point about different cooks.

But I do struggle to see the Lange point – if they had published this information having obtained it somehow, then, if the government did attempt to prosecute them somehow, they would have a Lange point. But Lange was about extending the defence of qualified privilege in defamation to cover mass publication of the kind of information and opinions necessary to the parliamentary and responsible government by elected members provided for in the Constitution.

It is a very long way from a shield to a sword, and an even longer way from any implied Constitutional anything to FoI, which I don’t recall existing in 1900, or even in 1950.

I think the ‘real’ reason Lange isn’t mentioned is more to do with the people involved knowing what they are doing :)

Ken Parish
17 years ago


I agree with you only in a limited sense. That is, if the original decision, from which the current appeal has just been heard by the High Court, did not raise the implied constitutional freedom, and the parties themselves did not seek to agitate it on appeal, it normally wouldn’t be a matter for the High Court to raise the issue of its own motion (although it isn’t unheard of for Justices to do so).

However, in a broader sense I agree with Tony Harris. The principle enunciated in Lange v ABC certainly arose in the immediate context of the defence of qualified privilege in a defamation case, but it’s a much wider principle both in its inception in ACTV and Nationwide News (neither of which were defamation cases) and in the breadth of the constitutional principles enunciated in Lange itself. Those principles are clearly not confined to defamation, and one would think they would equally apply in interpreting the constitutionally permissible limits on non-disclosure of documents under FOI. That is, just as the common law qualified privilege defence to defamation has been developed against the touchstone of the implied freedom of political speech, so should the development of the principles for balancing legitimate needs of confidentiality against principles of openness/transparency. This passage from the joint judgment in Lange is equally applicable to the FOI situation as to the development of the common law of defamation:

If the freedom is to effectively serve the purpose of ss 7 and 24 and related sections, it cannot be confined to the election period. Most of the matters necessary to enable “the people” to make an informed choice will occur during the period between the holding of one, and the calling of the next, election. If the freedom to receive and disseminate information were confined to election periods, the electors would be deprived of the greater part of the information necessary to make an effective choice at the election.

In addition, the presence of s 128, and of ss 6, 49, 62, 64 and 83, of the Constitution makes it impossible to confine the receipt and dissemination of information concerning government and political matters to an election period. Those sections give rise to implications of their own. Section 128, by directly involving electors in the States and in certain Territories in the process for amendment of the Constitution, necessarily implies a limitation on legislative and executive power to deny the electors access to information that might be relevant to the vote they cast in a referendum to amend the Constitution. Similarly, those provisions which prescribe the system of responsible government necessarily imply a limitation on legislative and executive power to deny the electors and their representatives information concerning the conduct of the executive branch of government throughout the life of a federal Parliament. Moreover, the conduct of the executive branch is not confined to Ministers and the public service. It includes the affairs of statutory authorities and public utilities which are obliged to report to the legislature or to a Minister who is responsible to the legislature. In British Steel v Granada Television[48], Lord Wilberforce said that it was by these reports that effect was given to “[t]he legitimate interest of the public” in knowing about the affairs of such bodies. Whatever the scope of the implications arising from responsible government and the amendment of the Constitution may be, those implications cannot be confined to election periods relating to the federal Parliament.

However, even if the Lange principle had been raised by the parties, that doesn’t mean it would necessarily have succeeded, as the following passage from Lange explains:

However, the freedom of communication which the Constitution protects is not absolute[49]. It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution. The freedom of communication required by ss 7 and 24 and reinforced by the sections concerning responsible government and the amendment of the Constitution operates as a restriction on legislative power. However, the freedom will not invalidate a law enacted to satisfy some other legitimate end if the law satisfies two conditions. The first condition is that the object of the law is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government or the procedure for submitting a proposed amendment to the Constitution to the informed decision of the people which the Constitution prescribes. The second is that the law is reasonably appropriate and adapted to achieving that legitimate object or end. Different formulae have been used by members of this Court in other cases to express the test whether the freedom provided by the Constitution has been infringed. Some judges have expressed the test as whether the law is reasonably appropriate and adapted to the fulfilment of a legitimate purpose. Others have favoured different expressions, including proportionality. In the context of the questions raised by the case stated, there is no need to distinguish these concepts. For ease of expression, throughout these reasons we have used the formulation of reasonably appropriate and adapted.

My general understanding is that the principal exemption basis claimed by the Commonwealth in relation to the bracket creep documents was that they were “internal working documents” of the government. The FOI Act allows the Minister to issue a conclusive certificate in relation to that category of document, which then precludes the AAT from undertaking a balancing exercise to decide whether the public interest in disclosure outweighs any (alleged) interest in maintaining confidentiality. Thus, as long as the documents ARE reasonably classifiable as “internal working documents”, the question for the High Court to answer would become (in effect): Does the implied constitutional freedom of political speech preclude the Parliament from passing a law which allows a Minister to prevent the AAT from allowing access to the government’s internal working documents? It is by no means unarguably the case that the public interest in freedom of communication on issues that affect their electoral choices should be held to preclude the government from restricting access to its own internal working documents. You can certainly also make the opposite case, however, and I do think it’s a shame that the parties seemingly didn’t choose to argue the case on that basis.