Falk Lines: Information Commissioner fights for the right to hide information indefinitely, que?

by Rex Patrick | Sep 19, 2022 | Government, Latest Posts

Information Commissioner Angelene Falk will argue in the Federal Court that she can take forever to handle FOI complaints. Rex Patrick, who brought the case, reports she is acting against the government’s transparency regime, advice from Mark Dreyfus, and the public interest.

For people to make valid judgments on government policy or to contribute to new policies in an intelligent way, they must be able to exercise their rights to have timely access to government information.

So it is with great disappointment that at 10.15 this morning the Information Commissioner (IC), Angelene Falk, will argue in the Federal Court that, when she is asked to conduct a review of a government’s FOI decision that refuses a person’s access to information, she can take forever to do so, thereby denying indefinitely the right of that person to engage fully in our democracy. 

The IC’s decision to instruct her taxpayer-funded solicitors to do so is a betrayal and a disgrace. It’s also a particularly strange move when the Attorney-General has already intervened in the case spelling out the adverse effects of her delay in decision making is having on the FOI regime.

Spending public money on secrecy

Last month Senator Murray Watt advised Senator Jacqui Lambie that the IC, who is on the record as being under-resourced, has spent a mammoth $301,667.12 on the matter. Norton Rose Fulbright Australia, who are representing the IC in the proceedings, originally estimated their costs would be $160,000, but hey, they’re on the gravy train now and will likely end up charging the taxpayer more than half a million.

Just over a year ago I made application to the Federal Court seeking a judicial remedy in relation to 22 IC reviews the Commissioner had failed to make a timely decision.

These FOI applications related to a wide range of issue; the Future Submarine Project progress reports (the project has now been cancelled); oil and gas processing options for the Greater Sunrise oil and gas resources in the Timor Sea (an issue that flared up in the news a few weeks ago, and an issue that won’t go away); the ‘‘Sports Rorts’’ Gaetjens Review (a report of interest in holding a past government to account)  and National Radioactive Waste Management Facility ministerial briefs (the location has now been decided, but there are court proceedings on foot), just to name a few.

Despite the efforts of the Attorney-General

In the early stage of the proceedings, which are being conducted by Victorian barrister Tiphanie Acreman, on a pro-bono basis, and for which The Australia Institute and Matilda Legal Fund are providing a cost indemnity, the then shadow and now Attorney-General Mark Dreyfus intervened to argue in favour of my case.

Mark Dreyfus’ supporting affidavit

Much of the $300K that has been spent on legal fees so far has been spent preparing an argument that the reason the IC can’t deal with FOI reviews in a timely way is because she is under-resourced. In a recent letter from the IC to the Attorney-General, released under FOI, she has pleaded with the government to give her more resources.

However, in a very last-minute application to the court, the IC has decided to argue that she has no duty to make a review decision in any reasonable time frame. Her official position, put in writing to the court, is that she can sit on a decision forever!

The IC says this is the case because my application to the court asks it to intervene on the basis she has not completed her duty of making a decision in a reasonable time frame, but she now argues that because a decision comes after an IC review, the court can’t enforce her duty to make a decision in a reasonable time until after she completes her review.

It’s akin to saying the time it takes to finish a race at Bathurst doesn’t include the time it takes to complete 161 laps, only the time it takes for the chequered flag to drop.

Tarnishing the office of the Australian Information Commissioner

It’s a cute legal argument that should be overcome by my small legal team. But it’s also a disgraceful argument that will tarnish the sense of reasonableness of her office for the rest of the time she serves in the role. 

There’s a difference between ‘‘right’ and ‘‘legal’’. We saw that demonstrated recently with the former prime minister secretly appointing himself to multiple ministries. Technically legal, but absolutely wrong!

The IC knows her own argument runs against objects of the Freedom of Information Act that she is supposed to uphold, support and implement. She likely betrays her own judgment, but certainly betrays her own cause. She has an hour or two to right her wrong.

Meanwhile the Attorney-General must surely be red faced. He’s allowed hundreds of thousands of taxpayers’ dollars to be spent on case in which he has formally sided against his own department.

“Be honest for once”: cost of secret trials rises as Government covers-up Timor spying fiasco

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 - www.transparencywarrior.com.au.

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