By Bianca Gallifuoco and Sonia Patel -
Snapshot
- A recent decision in the NSW Civil and Administrative Tribunal demonstrates that agencies must prove public interest considerations when refusing access to information under the Government Information (Public Access) Act 2009 (NSW).
- The Tribunal’s reasoning sharpens the distinction between suppression and non‑publication orders, underscoring that the existence of an order alone will not enliven conclusive presumptions against disclosure.
- This article discusses the case and how agencies can argue public interest considerations against disclosure genuinely outweigh the strong presumption in favour of transparency.
The way public institutions control and disclose information plays a vital role in shaping the relationship between governments and their citizens. A critical tenet of Australia’s representative democracy is the right to discourse on public affairs, achieved most effectively through information transparency, being ‘a national resource that should be accessible to the Australian people on whose behalf the information is generated and collected’ (Australian Law Reform Commission, Open government: a review of the federal Freedom of Information Act 1982 (Report No 77, 20 January 1996) at [4.9]). When this right is constrained, citizens are, arguably, mere subjects to the government and denied the right to make integrity and responsibility a reality (P Birkinshaw, ‘Freedom of Information and Openness: Fundamental Human Rights?’ (2006) 58(1) Administrative Law Review 177 at 216).
Public interest journalism provides a critical contribution to discourse on public affairs, and media organisations are often championing applications under the Government Information (Public Access) Act 2009 (NSW) (‘GIPA Act’). The media’s ability to engage in responsible journalism is dependent on being able to access information, and fidelity to the principles of open government and open justice.
