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Tychsen, Karlo; Townsend, Barbara --- "2008 Kirby Cup extract from 2008 winning entry" [2009] ALRCRefJl 23; (2009) 93 Australian Law Reform Commission Reform Journal 70

2008 Kirby Cup: Extract from the winning submission

The Kirby Cup Law Reform Competition is a unique opportunity for Australian law students to participate in law reform debate and to gain recognition for their vision for law reform. The Kirby Cup is organised and sponsored by the Australian Law Reform Commission (ALRC), in collaboration with the Australian Law Students Association (ALSA). It commemorates the life long commitment of the Hon Justice Michael Kirby AC CMG to law reform and his stewardship of the ALRC from 1975 to 1984.

Entries to the Kirby Cup Competition consist of a written submission on an area of law reform currently under review by the ALRC. After careful consideration of these submissions, three finalists are selected and asked to make an oral presentation on their submissions as part of the competition at the ALSA annual conference. In 2008, the competition took place at the ALSA conference held in July at the University of Tasmania. The judges of the 2008 Kirby Cup were Mr Simon Allston, Ombudsman Tasmania; the Hon Justice Pierre Slicer of the Supreme Court of Tasmania; and ALRC Commissioner, Professor Rosalind Croucher.

The winners of the 2008 Kirby Cup were Barbara Townsend and Karlo Tychsen from the University of Newcastle, with a submission on the freedom of information laws. The authors address the role that public interest plays in achieving a balance between the interest in open and transparent government decision making and the need to protect information that may affect interests such as the economy, the privacy of individuals and the ability of public servants to provide frank and fearless advice. For more details on the 2009 Kirby Cup please visit the ALRC^'s website www.alrc.gov.au.

What follows is an extract of the submission by the 2008 winners of the Kirby Cup, Barbara Townsend and Karlo Tychsen:

Public Interest

The very definition of 'public interest' changes over time, and has been considered judicially throughout the years. But a standout in its interpretation is that when something is done in the interest of the public, it is being seen to be serving the public. It is an unworkable situation where a Freedom of Information agent, working for a particular agency, is asked to weigh up the interests of the public versus the interests of the people who pay his/her salary. How can an agent be seen to be serving the public, when they are answerable to a particular governmental agency? An independent body for requests is the only workable solution. It removes doubt in the process, and by having a body that reviews all initial requests and has unlimited access to information (even that which is currently exempt) the legitimacy of documents which would otherwise be exempt is independently tested.

The public interest in having the information must outweigh the harm that would be created if it was released. While the phrase 'public interest' is not defined in the Act, due to the difficulty in undertaking such a task, it is still something that needs to be clarified. There needs to be a schedule with elements or points that articulate what agencies are looking for in regards to potential harm. The very definition of public interest takes into consideration many factors¹ in order for these interests to be tested, and is difficult to define because there is no one homogenous, undivided concept.² There are however some clear-cut elements in its judicial consideration. It embraces standards of human conduct and government functions and instrumentalities which work for the good order of society and its members.³ On top of this, public interest involves serving the advancement of the public's welfare.⁴ A statutory recognition of these elements, meaning the standards to be expected of human behaviour, could be placed within the wording of the framework of exemption.

In McKinnon v Department of Treasury,⁵ the three public interest tests are as follows:

1. public interest outweighs exemption;⁶
2. the information is from a deliberative process and disclosure outweighs the public interest;⁷ and
3. implicit personal/private and business affairs are disclosed when deemed reasonable.⁸

All exemptions must stand up to the public interest tests, rather than only small, specific sections of the Act applying to the public interest tests. Thus, any exemption made will maintain credibility and strengthen the integrity of the government in office, which goes back to the original purpose of the Act. A public interest focus on exemptions shows the legislation to be serving the public, rather than the legislation serving to protect ministers or other officials. A simple restructuring of the legislation is what is needed. It is a cultural question as much as it is a legislative one. Any exemption must make clear that the public interest is not served by disclosure of this exempted information.⁹

Consideration is given in McKinnon to public interest as often being used in achieving the balance between public interest or in the notions of individual or private interest.¹⁰ Contrast the McKinnon public interest consideration against The Howard Factors¹¹ (which protect senior official individuals from disclosing delicate information) which are diametrically opposed to each other. Particularly, it denies the fundamental aim of the Freedom of Information Act, providing the public with information that concerns them and serves their interests.¹²

Endnotes

1 Open Government: A Review of the Federal Freedom of Information Act 1982, (ALRC 77, 1995) [8.14], which talks about the factors that might be relevant to determining public interest. Clearly, this determination requires analysis of individual circumstances.

2 McKinnon v Department of Treasury [2005] FCAFC 142.

3 DPP v Smith [1991] VicRp 6; [1991] 1 VR 63.

4 McKinnon v Department of Treasury [2005] FCAFC 142. However, even this element is dependent on 'each particular set of circumstances'.

5 McKinnon v Department of Treasury [2005] FCAFC 142.

6 Freedom of Information Act 1982 (Cth) s 33A - Commonwealth and state relations; s 39 - Commonwealth financial and property interests; s 40 - certain operations of agencies.

7 Freedom of Information Act 1982 (Cth)  s 36  - internal working documents.

8 Freedom of Information Act 1982 (Cth) s 41 - personal private affairs; s 43 - business affairs.

9 Matthew Moore, 'Not Just the Law that Needs Fixing', Sydney Morning Herald, (Sydney, 30 November 2007).

10 McKinnon v Department of Treasury [2005] FCAFC 142.

11 Re Howard and Treasury of Commonwealth [1985] AATA 100; (1985) 7 ALD 626, 634-5.

12 Re Eccleston and Department of Community and Family Services and Aboriginal and Indigenous Affairs [1993] QICmr 2; (1993) 1 QAR 60.