Melbourne Law School - Theses

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Public interest in the exemption provisions of the Freedom of Information Act 1982 (cth)

Chesla, Nicholas Henry Oswin ( 1991)

There are arguably at least four situations where public interest considerations have a role in the exemption provisions in the Freedom of Information Act 1982 (Cth). Firstly, there is an argument that public interest considerations provide the basis for the presence of each of the exemption provisions in the Act as an essential public interest. Secondly, it may also be argued that some of the exemption provisions also require consideration of the public interest as a separate element in deciding whether a document ought to be exempt from disclosure. This arises from the reference in sections 33, 33A, 36, 39, 40 and 44 to `public interest'. Thirdly, assuming that public interest can be a separate element for consideration in one or more of these provisions, it can be argued that in such circumstances it looks in general terms to ensuring the well-being of the Australian community through balancing public interests which are relevant to a resolution of the tension between openness and confidentiality. However, questions arise as to the more specific function/s which public interest performs in particular exemption provisions. Fourthly, there may also be an argument that public interest considerations are reflected in the operation of exemption provisions even where the concept is not explicitly referred to.