McKinnon v Secretary, Department of Treasury

This case concerned an appeal to the High Court of Australia by Mr McKinnon, the Freedom of Information Editor for The Australian newspaper, against a decision by the Secretary of the Department of Treasury. Mr McKinnon had made two requests under the *Freedom of Information Act 1982* (Cth) for documents relating to "bracket creep" and the First Home Buyers Scheme. Access to some 47 documents was denied, and the Treasurer subsequently issued conclusive certificates under section 36(3) of the Act, asserting that disclosure of these documents would be contrary to the public interest. The Administrative Appeals Tribunal had affirmed the exemption claims.

The central legal issue before the High Court was the test to be applied when reviewing a Minister's conclusive certificate under the *Freedom of Information Act 1982* (Cth). Specifically, the Court had to determine the scope of the Tribunal's review powers in relation to such certificates, particularly when the certificates asserted that disclosure of documents was contrary to the public interest. The Court also considered the distinction between a topic of public interest and the specific documents generated in relation to that topic, and whether the Tribunal had adequately addressed the evidence presented by the appellant.

The High Court reasoned that while the objects of the *Freedom of Information Act 1982* (Cth) favour public access to government documents, these objects are explicitly limited by exceptions and exemptions necessary for the protection of essential public interests. The Court found that the Act's language, particularly in Part IV, clearly and unambiguously defined the Tribunal's function in reviewing the conclusiveness of a Minister's certificate, thereby limiting the broader objects of the Act. The Court noted that the Treasurer's certificates identified seven grounds for non-disclosure, all relating to the protection of government processes, the integrity of decision-making, and the prevention of public confusion or misunderstanding. The Court accepted that the Tribunal had preferred the evidence of the respondent's witness, and that while the appellant's evidence highlighted the public interest in the subject matter, it failed to adequately distinguish this from the specific relevance, currency, and importance of the documents themselves, or to demonstrate that the public interest necessarily required their disclosure.

The appeal was dismissed with costs.