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Freedom of Information Review
The power of disclosure:
the Nunawadmg by-election
The case about the Nunawading by-election how-to-vote
cards powerfully demonstrates the potential of Fol to
hold government accountable. But precisely because
Fol worked so well, it is endangered.
By extracting information of high and current political
sensitivity, Fol improved understanding of its value
among journalists and, through their coverage, the
public. Scrutiny of government is not the only role of
Fol — participation and an individual’s ability to correct
his or her file are equally important — but this function
naturally tends to be the most newsworthy.
The sharp parts of Fol will survive only if public
awareness is sufficiently high to deter government from
blunting them. (The Federal Government’s successful
attacks on the Commonwealth Fol scheme have been
made possible largely because of neglect of Fol by most
of the media.)
By highlighting Fol’s potential, the Nunawading case
also strengthened the hand of those in the Victorian
Government who wish to trim the uncomfortable bits
from the statute the Cain Government passed in 1982.
Other premiers will not miss the lesson, if they needed
it, when Fol advocates murmur again in their States.
In Victoria, Fol supporters should expect renewed
attempts to limit the Act by amendment and regulation.
It may not be a coincidence that proposed regulations
to exclude several bodies from the reach of Fol requests
would grant immunity to, among others, the SolicitorGeneral, the Victorian Government Solicitor (formerly
the Crown Solicitor) and the Director of Public
Prosecutions — all significant in the Nunawading case.
While some of the lessons of the Nunawading case
may be common to others, they are worth reporting.
First, some necessary background.
In August 1985, at a by-election for the Legislative
Council seat of Nunawading, an eastern suburb of
Melbourne, Labor had the chance to win a one-seat
majority in the Upper House. Tempted, several Labor
people, including the State secretary, Peter Batchelor,
organised for the distribution at polling booths of a
nuclear disarmament how-to-vote card which distributed
preferences in a way which would advantage the ALP.
The Nuclear Disarmament Party, whose official howto-vote card intentionally left preferences to the voters’
discretion, complained to the chief electoral officer
(CEO), Eric Richardson, that the unofficial card
infringed the law in that it was likely to mislead or
deceive voters.
The police investigation was so vigorous it was
suggested that Nunawading may have been used as
a lever to put pressure on the Government over another
investigation into several senior police who had
allegedly received cheap tickets from Continental
Airlines.
In May 1986, Richardson announced that no charges
would be laid over the Nunawading affair, citing ‘the
conflicting advice that I have received’. The next day
I made a Fol request for the police report and legal
advice on which Richardson had based his decision.
Predictably, an appeal to the Victorian AAT was
necessary and it was heard in April 1987.
T h e Lessons
1. The hearing itself put a large amount of new
information on the public record. For instance,
Richardson said in evidence that he had sought the
advice of the Solicitor-General, Hartog Berkeley, QC,
after this had been suggested to him by his Minister,
through the Director-General of his department. (The
M inister for P roperty and Services, Andrew
McCutcheon, and the Director-General, Bill Russell,
have since denied that they intended to influence
Richardson’s decision.)
Fol showed its value as a formal method of
questioning government action. I had worked with a
colleague for a year on the case, but valuable pieces
of the jigsaw were made public only because key
players were questioned on oath by counsel.
2. The Government’s favourite exemption in the case
was s.32, legal professional privilege. My counsel
argued that privilege did not attach to some documents
and acknowledged that, while the exemption technically
applied to others (including the legal advice Richardson
received), the AAT president, Judge Rowlands, ought
to use the s.50(4) power to order disclosure in the public
interest.
The Government’s s.36 statement AAT Act (Vic.) was
deceptive in at least one important way. The statement
described a key document, number 197, as ‘internal
memorandum of Assistant Crown Solicitor for Victoria
recording attendance upon Solicitor-General for
Victoria, being a communication for the sole purpose
of . . . legal advice.’
In fact, the document is a file note made by the
Assistant Crown Solicitor, Alistair McLean, recording
that the day before the CEO’s decision was released,
the Solicitor-General had phoned him ‘to let me know
that the Government would prefer that no proceedings
are commenced this week’. (In the political fuss that
followed disclosure of this document, Berkeley said
nobody had asked him to phone McLean.)
Freedom of Information Review
Freedom of Information Review
39
Ordering disclosure, Judge Rowlands said ‘the
conversation had nothing to do with the provision of
legal advice nor with existing or anticipated litigation’.
Requesters ought to be sceptical of reasons
statements and encourage appeals bodies to compare
them with the documents they purport to describe.
3. Using a police witness, the Government made great
play of the danger of violence to an informant if I were
given access to certain documents and the informant’s
identity became known. It became clear in crossexamination that friends of an unnamed informant had
told police they feared the informant would be subject
to violence. But the police had not heard this from the
informant and had not told him what his friends feared.
Counsel: But it [possibility of violence] was based, so far
as you are aware, on rumour rather than hard facts?
Witness: Well to a certain extent, yes.
Counsel: I mean . . . if you had been aware that X had
threatened to beat the living daylights out of 175 (the
informant’s code), if 175 spoke to you, you would have done
something about it, would you not? You would have gone
and spoken to X.
Witness: I would yes.
Counsel: And you did not do anything like that.
Witness: Well, we didn’t know who they were exactly. There
was no definite evidence about in fact what threats had
been made, but the inferences were there.
The Government’s line was counter-productive not
merely because it was so thin. Their own case gave the
Nunawading issue a smell like the bashing of Peter
Baldwin over disputes in Sydney ALP branches when
such an odour was unjustified.
4. The case demonstrated the political folly of delaying
disclosure in the hope that the requester will give up.
If access had been granted to me alone at an early
stage, the Government would have had to endure one
isolated newspaper article explaining the conflicting
legal advice on which the CEO had decided not to
launch prosecutions.
Five lawyers provided nine separate opinions, of
which seven said or confirmed a prima facie case
existed; one said that although a case existed it was
probably better, on balance, not to prosecute; and one
— by the Solicitor-General and a junior — said there
was no offence and no prima facie case.
Instead, typically, the request was resisted, and the
result was infinitely more painful for the Government.
The AAT hearing produced several damaging
disclosures and the decision to disclose reopened a
wound about ALP electoral conduct during the opening
days of a federal election campaign in which five of the
Government’s eight most marginal seats were in
Victoria.
Of course, the timing of the eventual disclosure could
not have been foreseen. But students of the politics of
information disclosure should note how the delay
weapon can backfire.
5. The last lesson from this case is not unique to it.
Nunawading is a shining example of the power of
disclosure of raw government material. A file note from
the Crown Solicitor’s Office, dictated by a senior officer,
showing that the Solicitor-General rang him the day
before the CEO announced his decision not to
prosecute, cannot be dismissed as hearsay or a
journalist’s unnamed source. A report of what the DPP
or Solicitor-General may have told the CEO is not the
same as reading copies of their advice.
If the media, that imperfect tool on which the public
relies to keep government accountable, more often cites
actual government documents in support of its
reporting, then the public can have more confidence
in what it is being told or judge for itself the government
behaviour which the documents reveal.
Paul C hadw ick
Paul Chadwick is a Melbourne journalist and author
of ‘Fol — How to Use the Freedom of Information
Laws’, Macmillan, 1985.
VICTORIAN Fol DECISIONS
Administrative Appeals Tribunal
H EFFER N A N and M IN ISTR Y OF
TR A N S P O R T
No. 860678
Decided: 22 May 1987 by K.R. Howie
(Member)
Consultant's report on property
development of Victorian Government
land —access refused toportions of
report containing sensitive financial
information — claims for exemption
under ss.34(1)(a) and (b).
A real estate company was retained
by the resp on de nt as P roperty
Manager Marketing Consultants for a
development known as the Victoria
Central Programme. As part of its
brief, it was required to make report
on the co m m e rc ia l v ia b ility of
subm issions tendered by interested
property developers. This report was
Aucnist 1987
provided to the applicant with some
deletions in respect of financial
in fo rm a tio n
p ro v id e d
by
th e
companies tendering for the project
and d e ta ils of te n a n c y p re ­
commitments. The respondent relied
upon ss.34(1)(a) and (b) to justify its
refusal to grant access.
Evidence was given at the Tribunal
hearing that release of the entire
report, which included details of
costings, profit margins, sources of
funds and expected interest rates,
would allow other businesses to
understand the planning processes
and b usine ss strateg ie s of the
companies tendering for the project.
As the com panies providing the
information were business financial or
comm ercial undertakings and the
Tribunal was also satisfied that the
information provided was of a financial
nature, it ruled that most of the deleted
portions were exempt under s.34(1)(a).
Only a percentage figure of risk and
profit and other details of a general
nature were not considered to be
information acquired from a business
commercial or financial undertaking.
No evidence was led by the
applicant to persuade the Tribunal to
exercise its power under s.50(4) to
release the undisclosed portions so
the Tribunal ruled that these details
were exempt under s.34(1)(a).
Note: After the Tribunal had handed
down its decision it received a further
submission from the respondent that
two of the com panies that had
tendered for the project did not object
to information concerning them being
released. The Tribunal was not