The Government has caved in to parliamentary, civil society and media pressure and offered to reduce the amount of money a citizen may pay for *winning* an FOI fight to $20,000. Rex Patrick reports on this still unacceptable proposition.
Stop at a loss, or else!
It was a rare but not unexpected move. Having won a freedom of information (FOI) battle over where the Government intends to store AUKUS nuclear waste, the government responded by appealing the transparency decision to the Federal Court.
But the sting was in the fine print of the notice of appeal. If the Government were successful in restoring secrecy over the radioactive information, I’d be required to pay their legal costs. In a recent FOI case in the Court, that cost was put at $150,000.
The message was clear and chilling to all – stop at an FOI loss or lose half your house.
A call for intervention
The reaction from Senators and MPs, civil society groups and media advocacy groups was swift. They recognised the bad precedent the Government’s actions would set – having a self-represented citizen standing at the bar table of a court against well-funded government lawyers, and at considerable financial risk if the citizen lost – just because they were transparency winners.
Letters were sent by 18 politicians and also by a collection of civil society groups to the Attorney-General Michelle Rowland asking her to intervene.
But Rowland sat idle, refusing to do anything.
Justice only for the wealthy
There are a number of costs associated with taking a matter to the Federal Court.
First there’s the application fee, which varies depending on the matter, but for an FOI appeal it is $6,080 ($13,130 for a government applicant – paid for by you).
Then there’s the hearing fee – $3,610 per day ($8,795 for a government applicant – again paid for by you).
For a two-day hearing, you’re up for well over $10,000.
Then there are your own lawyer’s fees. This could easily run higher than $100,000.
And that’s not the end of the story. If you lose, you’ll have to pay the legal fees of the other side, another $100,000.
Litigation puts big holes in a party’s wallet (unless you are the government – who use your money).
Chapter III of our Constitution ensures citizens have access to justice; but that’s really only true for wealthy citizens.
Interlocutory order
I don’t know how a regular Joe or Jenny would react to the Government taking them to Court for winning an FOI.
Fortunately, I have some Court experience and so, after the Attorney-General refused to intervene and agree to pay my legal fees and to drop the threat of having to pay the Government’s costs, I asked the Court to intervene. I asked it, in the interest of justice, to order the Government to do what the Attorney-General would not.
Leaving aside the request for Government to fund my legal team to ensure there’s a professional contradictor arguing what the public law is, I asked the Court to cap the legal costs I might have to pay to Government if I lose to just five cents; five cents being the smallest coin in the realm.
Partial capitulation
In response to my request to the Court for a five-cent protective cost order, the Government has immediately capitulated, albeit only partially.
Weary from pressure, and knowing the Court would likely grant me adverse costs protection, they’ve offered to limit the amount of money I am at risk of to $20,000.
Somehow, they think that’s OK.
The problem with that is that it sets a precedent that the citizen’s price of an FOI win is $20,000, and that just can’t be right.
I will have to fight on to get a five cent protective costs order, not just for me, but for anyone that follows me with an FOI win.
Anxiety making
The fact is the Government lawyers that were advising the acting Secretary of the Department of Industry, Science and Resources (DISR), the applicant in the Court, knew that I was always going to get a protective cost order, but the request for me to pay their full costs was made anyway.
It’s conduct designed to cause anxiety and is a practice that is not consistent with fairness that one might expect from a government to one of its citizens.
The acting Secretary, Julia Pickworth, steadfastly stood her ground on the adverse cost order despite pleas to drop it. But in a heartbeat, when confronted with an application to the Court challenging the order, she capitulated.
Either she was out of her depth from the start
(it is noted she has not been selected to take the role full time) or she was paying games … games that might have really troubled a less resilient and tenacious FOI applicant.
As for the Attorney-General who failed to intervene, despite representation from MPs and civil society groups, that just shows that she lacks judgement. And that’s a great concern.
The Federal Attorney-General has a responsibility to the Parliament for all litigation conducted by the Commonwealth.
If an Attorney-General can’t exercise good judgement in a no-brainer issue like mine, even when 18 MPs have written to her pointing out the folly, what chance has the public got that her judgement will be sound in the face of even bigger decisions.
And as I fight on to get a no adverse cost precedent from the Court in circumstances where an FOI applicant gets a win, the Court may further expose her lack of judgement.
Rex Patrick is a former Senator for South Australia and, earlier, a submariner in the armed forces. Best known as an anti-corruption and transparency crusader, Rex is also known as the "Transparency Warrior."