Post by Anja Nieser on Sept 6, 2006 23:03:20 GMT -5
Dead end for FOI laws
September 7, 2006
THE federal Treasurer, Peter Costello, has won an ignominious victory in the High Court, with a majority of judges upholding his refusal to divulge important information sought under the federal Freedom of Information Act. The ruling is an effective death sentence for the ground-breaking FOI legislation introduced by the Fraser government in 1982 and later emulated by the states. Beyond that, it is an enormous setback to informed debate, and further tips the scales towards unaccountable ministerial power. Australia's democracy is diminished by the court's decision.
The case goes back to 2002 when Mr Costello refused the FOI requests from The Australian's Michael McKinnon to reveal what Treasury officials knew about income tax "bracket creep" and possible rorts in the first-home buyers scheme. Mr Costello's refusal had ample precedent on both sides of federal politics - notably from Paul Keating who, as treasurer, had rejected FOI applications from his then Liberal shadow, John Howard. Appeals since pursued by McKinnon, with the backing of his publisher, News Corp, and later this newspaper's publisher, John Fairfax, have challenged in the Administrative Appeals Tribunal, the Federal Court, and now the High Court.
Yesterday's majority rulings (by Justices Kenneth Hayne, Ian Callinan and Dyson Heydon) and the dissenting minority (Chief Justice Murray Gleeson and Justice Michael Kirby) reflect two schools of thinking. The Gleeson-Kirby view emphasised that the FOI law asserts a general right to information by Australian citizens, limited only by exceptions necessary to protect vital public interests. In essence, ministers had to put up plausible arguments against a presumption that disclosure was in the public interest. Against this, the majority gave more weight to the caveats and cautions in the FOI law, upholding the Administrative Appeals Tribunal decision backing Mr Costello's refusal. The three judges held that the tribunal did not have the power to substitute its opinion for the minister's about whether disclosure would be contrary to the public interest or to assess for itself what the public interest required. This was "a matter as to which a responsible minister has the primary and, as will appear, almost the final judgement by reason of other relevant statutory language".
So the minister has the unchecked power to decide that the public should not see Treasury figures showing how much bracket creep takes back from tax cuts, or whether children of the rich were getting the $7000 first-home subsidy. But it is more significant than blocking a few awkward bits of information. The High Court has backed a timorous view of democracy that denies Australians the opportunity to make informed decisions. In doing so, it has missed an opportunity to refine the FOI legislation and confirm it as a core, quasi-constitutional part of our system. Three pettifogging judges have belittled us all.
The narrowness of the 3-2 ruling, with the Chief Justice in the minority, should not raise hopes that this is anything but the end of a useful FOI regime in Canberra. The hope of retrieving the loss now rests with shaming politicians, starting with Mr Costello, into legislative amendments to reassert the principle of freedom of information.
A firing squad in Bali
DIPLOMACY seems to be all that stands between most of the Bali nine and the firing squad. The six who are sentenced to death are not likely to have grounds for a judicial review. That leaves an appeal for clemency to the Indonesian President, Susilo Bambang Yudhoyono. The Australian Government has rightly said it will support any plea for mercy. However, Australia's persuasiveness as an advocate has been compromised by its weakness and inconsistency as an opponent of capital punishment.
Clearly, Australia has failed to effectively convey to Indonesia its concern for the fate of the Bali nine; this is plain from way Indonesia did not even bother to tell Canberra of the four new capital sentences, handed down between one and three weeks ago. The Government had to find out from yesterday's Herald that Indonesia's Supreme Court had ruled that Scott Rush, Tan Duc Thanh Nguyen, Si Yi Chen and Matthew Norman should face death along with Bali nine ringleaders Myuran Sukumaran and Andrew Chan. Yet the Foreign Affairs Minister, Alexander Downer, had met his Indonesian counterpart, Hassan Wirajuda, in Dili only this week. Martin Stephens and Michael Czugaj, who also appealed, have been spared the firing squad but face life in jail. Renae Lawrence, who got 20 years, was the only one of the nine not to appeal. With Australian Trinh Huu sentenced to death in Vietnam, also for drug trafficking, Australia faces a diplomatic challenge in upholding its declared opposition to capital punishment.
First, Australia must establish itself as a clear opponent of the death penalty. It cannot equivocate as it has when, for example, the Prime Minister, John Howard, said he would not object to death penalties for the Bali bombers and would welcome the execution of Osama bin Laden. Having made its position firm, Australia must actively oppose capital punishment generally, not just when Australians are involved. Australia could profitably begin its diplomatic offensive in our region in concert with Asian countries of like mind. It might start by targeting countries such as South Korea and Malaysia where the issue is at least increasingly under debate. Generally, Australia could make sure capital punishment is prominent in its broader discussions about human rights and justice issues with countries to our north, not least China, which accounted for 82 per cent of the 2148 people Amnesty International estimates to have been executed last year.
By working for the abolition of the death sentence everywhere, Australia will make itself a more credible advocate for Australians anywhere.
www.smh.com.au/news/editorial/a-firing-squad-in-bali/2006/09/06/1157222195276.html?page=fullpage#contentSwap1
September 7, 2006
THE federal Treasurer, Peter Costello, has won an ignominious victory in the High Court, with a majority of judges upholding his refusal to divulge important information sought under the federal Freedom of Information Act. The ruling is an effective death sentence for the ground-breaking FOI legislation introduced by the Fraser government in 1982 and later emulated by the states. Beyond that, it is an enormous setback to informed debate, and further tips the scales towards unaccountable ministerial power. Australia's democracy is diminished by the court's decision.
The case goes back to 2002 when Mr Costello refused the FOI requests from The Australian's Michael McKinnon to reveal what Treasury officials knew about income tax "bracket creep" and possible rorts in the first-home buyers scheme. Mr Costello's refusal had ample precedent on both sides of federal politics - notably from Paul Keating who, as treasurer, had rejected FOI applications from his then Liberal shadow, John Howard. Appeals since pursued by McKinnon, with the backing of his publisher, News Corp, and later this newspaper's publisher, John Fairfax, have challenged in the Administrative Appeals Tribunal, the Federal Court, and now the High Court.
Yesterday's majority rulings (by Justices Kenneth Hayne, Ian Callinan and Dyson Heydon) and the dissenting minority (Chief Justice Murray Gleeson and Justice Michael Kirby) reflect two schools of thinking. The Gleeson-Kirby view emphasised that the FOI law asserts a general right to information by Australian citizens, limited only by exceptions necessary to protect vital public interests. In essence, ministers had to put up plausible arguments against a presumption that disclosure was in the public interest. Against this, the majority gave more weight to the caveats and cautions in the FOI law, upholding the Administrative Appeals Tribunal decision backing Mr Costello's refusal. The three judges held that the tribunal did not have the power to substitute its opinion for the minister's about whether disclosure would be contrary to the public interest or to assess for itself what the public interest required. This was "a matter as to which a responsible minister has the primary and, as will appear, almost the final judgement by reason of other relevant statutory language".
So the minister has the unchecked power to decide that the public should not see Treasury figures showing how much bracket creep takes back from tax cuts, or whether children of the rich were getting the $7000 first-home subsidy. But it is more significant than blocking a few awkward bits of information. The High Court has backed a timorous view of democracy that denies Australians the opportunity to make informed decisions. In doing so, it has missed an opportunity to refine the FOI legislation and confirm it as a core, quasi-constitutional part of our system. Three pettifogging judges have belittled us all.
The narrowness of the 3-2 ruling, with the Chief Justice in the minority, should not raise hopes that this is anything but the end of a useful FOI regime in Canberra. The hope of retrieving the loss now rests with shaming politicians, starting with Mr Costello, into legislative amendments to reassert the principle of freedom of information.
A firing squad in Bali
DIPLOMACY seems to be all that stands between most of the Bali nine and the firing squad. The six who are sentenced to death are not likely to have grounds for a judicial review. That leaves an appeal for clemency to the Indonesian President, Susilo Bambang Yudhoyono. The Australian Government has rightly said it will support any plea for mercy. However, Australia's persuasiveness as an advocate has been compromised by its weakness and inconsistency as an opponent of capital punishment.
Clearly, Australia has failed to effectively convey to Indonesia its concern for the fate of the Bali nine; this is plain from way Indonesia did not even bother to tell Canberra of the four new capital sentences, handed down between one and three weeks ago. The Government had to find out from yesterday's Herald that Indonesia's Supreme Court had ruled that Scott Rush, Tan Duc Thanh Nguyen, Si Yi Chen and Matthew Norman should face death along with Bali nine ringleaders Myuran Sukumaran and Andrew Chan. Yet the Foreign Affairs Minister, Alexander Downer, had met his Indonesian counterpart, Hassan Wirajuda, in Dili only this week. Martin Stephens and Michael Czugaj, who also appealed, have been spared the firing squad but face life in jail. Renae Lawrence, who got 20 years, was the only one of the nine not to appeal. With Australian Trinh Huu sentenced to death in Vietnam, also for drug trafficking, Australia faces a diplomatic challenge in upholding its declared opposition to capital punishment.
First, Australia must establish itself as a clear opponent of the death penalty. It cannot equivocate as it has when, for example, the Prime Minister, John Howard, said he would not object to death penalties for the Bali bombers and would welcome the execution of Osama bin Laden. Having made its position firm, Australia must actively oppose capital punishment generally, not just when Australians are involved. Australia could profitably begin its diplomatic offensive in our region in concert with Asian countries of like mind. It might start by targeting countries such as South Korea and Malaysia where the issue is at least increasingly under debate. Generally, Australia could make sure capital punishment is prominent in its broader discussions about human rights and justice issues with countries to our north, not least China, which accounted for 82 per cent of the 2148 people Amnesty International estimates to have been executed last year.
By working for the abolition of the death sentence everywhere, Australia will make itself a more credible advocate for Australians anywhere.
www.smh.com.au/news/editorial/a-firing-squad-in-bali/2006/09/06/1157222195276.html?page=fullpage#contentSwap1