Appeal for Transparency: Rex Patrick takes secrecy fight to the Full Federal Court

It can’t be correct that a government-of-the-day can, by defunding its FOI apparatus, steal away a right given to us by Parliament to have timely access to information useful for scrutinising that very same government. Rex Patrick is taking his FOI fight to the Full Bench of the Federal Court.

The competition between the Parliament and the Crown (replaced today by the executive Government) was a long and bloody one. 

The big showdown in tensions between the two came during the rule of King Charles I – from 1625 to 1649. King Charles believed in the ‘divine right of kings’, and was determined to govern according to his own conscience. Many of his subjects opposed his policies, in particular the levying of taxes without parliamentary consent, and perceived his actions as those of a tyrannical, absolute monarch.

In January 1649, the King was tried for tyranny and treason. He was convicted and put to death with a quick beheading – on account of the fact he was royal (executioners in those days were expert in slower and more painful ways to execute someone).

Shortly thereafter, an Act declaring England to be a commonwealth was passed that made the House of Commons ‘the supreme authority of this nation, the representatives of the people in Parliament’.

That wasn’t quite the end of it. There was some toeing and froing over the next 30 odd years.

Between 1653 and his death in 1658, Oliver Cromwell, the leading advocate for the execution of King Charles, served as Lord Protector of the Commonwealth. His son took over after that, but his weakness left a power vacuum.

In 1660, Charles’ son, King Charles II was restored to the throne. King James II followed, but in response to policies that threatened to restore Catholicism in England, Parliament deposed him and called William of Orange from the Dutch Republic and his wife Mary, who was James’s protestant daughter, to replace him. 

William and Mary agreed to the 1688 Bill of Rights presented to them by Parliament, thereby acknowledging that their power came from the legislature rather than from any concept of the ‘divine right of kings.’

There weren’t too many problems after that.

A legally enforceable right

It is Parliament that grants rights to citizens. Section 61 of our Constitution requires the government exercise its powers for the execution and maintenance of the laws of the of the Commonwealth. When it says ‘execution’, it doesn’t mean ‘kill’. Only the Parliament can take away a right.

The FOI Act grants citizens a legally enforceable right to access government documents that are not exempt from disclosure. Parliament intended that the access be granted promptly, because without that the objects of the FOI Act – to enable the public to participate in and scrutinise government – are defeated.

Successive governments have not properly funded the FOI regime in Australia. 

Indeed, in 2014 Prime Minister Tony Abbott asked the Parliament to shut down the Office of the Australian Information Commissioner only to find that the Senate wouldn’t let him. 

So, Abbott, thinking he had King Charles’ ‘divine right’, just defunded the Office to the point where the then Information Commissioner, Professor John McMillan AO, left was left working much of his time from a home office.

Prime Minister Malcolm Turnbull restored the funding, but since that re-injection of limited new funds, reviews of FOIs in the Information Commissioner’s office have been progressively getting slower and slower (as more and more people seek FOI reviews).

A Royal Dud: Queen’s death FOI debacle shows Australia’s transparency system is bust

Court action

In 2021, I took the Information Commissioner to the Federal Court, charging that she was taking an unreasonable time to deal with a number of my FOIs review request.

In its 2023 determination, the Court recognised that delays in processing my FOI reviews — in some cases almost three years — were “very significant”. But it ultimately determined that the delays were not legally unreasonable due to an underfunding of the Office of the Australian Information Commissioner by successive governments.

Unfortunately, the Court took the view that the mess that is the FOI regime was the Parliament’s problem to fix. But I wasn’t asking the Court to fix the system, rather I was asking it to uphold the right the Parliament gave to me; to access information in a timely way. I wasn’t being selfish in my approach; I knew I’d be creating a precedent that others could use, and that would encourage the Government to fix the problem.

Appeal for transparency

So, I’ve now appealed the single judge’s decision to the Full bench of the Federal Court. 

Thankfully, a highly experienced legal team headed by Stephen McDonald SC has recognised the public importance of the matter, and, along with the Australia Institute and Grata Fund, are supporting me.

It just can’t be correct that a transparency right granted to citizens by the parliament can be stripped away by a government that chooses to squeeze funding to the very office that helps facilitate the transparency right. 

Delay is the enemy of FOI. There’s no point getting access to government documents several years after they lose their relevance, unless you’re a historian. Governments know that, and the current Labor Government have adopted the same funding squeeze approach to the Information Commissioner as past Liberal Governments 

If a government is permitted to take away a citizen’s legal right to access government documents by simply not funding the agencies that deliver that right, then the Government will take away all sorts of rights in the same way.

And that would leave Oliver Cromwell turning in his grave – if he could, noting he died of malarial fever in 1658 and was buried in Westminster Abbey until King Charles II had him dug up, ritually executed, decapitated and his head was put on display at the site where his father was tried.

There is hard won importance in this case that goes beyond timely access to documents.

Information Commissioner aiding and abetting the enemy