A tale of two tax stories; Freedom of Information and determining the public interest in Australia and the United Kingdom.

Abstract

In February 2005 The Times newspaper applied to the United Kingdom Treasury for access to documents prepared for Ministers on the expected loss of revenue by pension funds from the removal of the right to claim tax credits on UK dividends. More than two years earlier The Australian newspaper sought access to information from the Australian Federal Treasury on ‘bracket creep’ in taxation. In this article the author contrasts these two applications and the tribunal and court cases that ensued. She uses the case studies to critique the provisions in the Australian legislation that enable Ministers and Department Heads to issue conclusive certificates to protect their decisions to refuse access to internal working documents from independent merits review. The treasuries in both jurisdictions resisted the freedom of information applications, arguing that disclosure would not be in the public interest. The documents in the UK case were eventually disclosed to The Times. The application by The Australian took the newspaper all the way to the High Court of Australia with no tax story to publish in the end. The paper was left with only a tale of freedom of information failure. The author concludes with an overview of proposals for FoI reform in the wake of the Australian High Court decision and the recent election of a Labor Government in Australia.