FOI and the Freedom of Political Communication

Abstract

There are very few freedom of information cases that have been heard by the High Court of Australia and this article discusses freedom of information rights in the context of the Court’s recent important decision in McKinnon. After reviewing the judgments in the case, the author advocates that freedom of information rights must not be seen in isolation, but in the context of broader constitutional rights, including the implied right to political freedom of communication, as well as the doctrine of representative government. It is suggested that the effect of the decision is to unduly narrow the rights citizens would otherwise have under freedom of information laws, and is contrary to the spirit of such laws. It compromises the ability of the sovereign people to exercise that sovereignty over their elected representatives. Placing freedom of information rights into this broader constitutional perspective, the decision can be seen as out of step with the Constitution and its prescribed system of government. More broadly, it is considered that freedom of information principles must be interpreted within the existing constitutional rights framework.