Does a change to a new Minister kill an ongoing FOI to the old Minister? Can a replaced Minister’s dirt be swept under the carpet? The Information Commissioner and Attorney General Mark Dreyfus said ‘yes’. Rex Patrick said no, and today the Federal Court said ‘no’ too.
When the Auditor-General finalised his highly critical audit report into the Community Sports Infrastructure Grants Program on 15 January 2020, it generated a huge ‘Sports Rorts’ controversy that quickly began to damage the political prospects of Prime Minister Scott Morrison’s Coalition government.
Morrison instigated damage control. The Prime Minister asked Attorney-General Christian Porter to prepare advice on whether the former Sports Minister, Senator Bridget McKenzie, had acted lawfully in overriding Sports Australia’s grant recipient choices in preference to grant recipients located in seats the Liberal Party were targeting in an upcoming election.
Porter provided Morrison with his ‘Letter of Advice’ on 31 January 2020. Morrison immediately grabbed onto this political lifeline, referring to the Attorney-General’s advice at a press conference on 02 February 2020, claiming that it supported the view that Sports Minister McKenzie did have legal authority to override Sports Australia.
A Perfect Slime: Scott Morrison’s slippery Sports Rorts report just the fix for Bridget McKenzie
FOI request
In March 2020, I made an FOI request for access to Porter’s Letter of Advice. Porter’s office refused to release it to me, and of course, I appealed the decision to the Information Commissioner.
When Senator Cash became the Attorney-General, in the wake of a rape allegation scandal (Christian Porter forcefully denied the allegation), the letter mysteriously went missing (even though it was claimed to be a Cabinet document), and the Information Commission ended the review in early 2023 on the basis that Cash’s successor, Mark Dreyfus KC MP, was not in possession of the Letter of Advice.
Federal Court appeal
I took a pretty dim view of the Information Commissioner’s decision. In practice it meant that governments could sweep all manner of dirt under the carpet, evading FOI scrutiny, whenever a Minister leaves a portfolio. I knew that couldn’t be right under the law. I appealed it to the Federal Court.
Given that the Attorney General was the respondent in the appeal, I was hoping he would simply concede that the decision was wrong and that the Information Commissioner review be continued. He didn’t.
But Dreyfus decided otherwise and chose to fight tooth a nail to defend the proposition that changing ministers should allow governments to wipe the FOI slate clean. It’s a decision that reflects poorly on the Attorney-General and has caused a hit on the taxpayer in the vicinity of $300,000 in legal fees.
In the judgement handed down in Federal Court today, Justice Charlesworth said whether a document is an official document of a minister is to be assessed by reference to the facts and circumstances in existence at the time an FOI request is lodged, not some later review date after which the minister may have changed.
Further, Her Honour determined that there is an implied obligation under the FOI Act, imposed on those who receive an FOI request from any member of the public, to take such steps as are necessary not to frustrate access to a document or the applicant’s rights of review and appeal.
The dog ate my cabinet paper (or did it?)
As mentioned above, neither Senator Cash nor Mark Dreyfus could find the document that I had originally requested. That was a pretty strange situation given the document I was after was claimed to be a cabinet document and thus subject to rigorous control, custody and audit arrangements. How can the Government lose a cabinet document?
One of the interesting outcomes of this whole saga was that after the appeal was lodged in the Federal Court a proper look was had and the document was magically found. So, my appeal is not in vain.
The matter has now been remitted back to the Information Commissioner to determine my FOI review request in accordance with the law. With the document found, I will now continue his fight to get access to the documents. I have some confidence I’ll get it released so the public can see just what Prime Minister Morrison relied on when he claimed ‘sports rorts’ were all ok.
Whilst the matter is now one of history, Australians are entitled to the truth. We might also learn something that will assist in avoiding future political rorting of taxpayers’ money.
Information Commissioner failings
I can’t conclude this article without directing some criticism at the Information Commissioner.
In my submissions to the Information Commissioner, I argued exactly the points argued by Stephen McDonald SC, who represented me in the Federal Court Appeal. I concede McDonald argued it with greater eloquence and authority, but none the less, the Information Commissioner completely ignored my pleadings. McDonald did not use bold print or shout in his argument before Justice Charlesworth as I did, but our argument was essentially the same.
Submissions to the Information Commissioner
In a decision she made in February last year, a whooping two and half years after I asked her to fix the scam, she failed to address my emboldened legal points. She preferred to stick to previous flawed decisions and her own FOI guidelines based on those previous decisions, where my arguments had not been considered.
Justice Charlesworth had some advice for her. “Finally, I should confirm that to the extent that the Commissioner’s decision was based in part on the content of the [FOI] guidelines issued under or for the purpose of the FOI Act,”
those guidelines should not be followed to the extent that they are not consistent with the FOI Act on its proper construction.
No more secrecy for departing ministers
Most importantly, the Federal Court’s decision means governments, Labor or Coalition, can no longer sweep a departing minister’s dirt underneath the carpet. It’s a win for all Australians who want to see greater transparency and accountability restored to our political system.
As Jacinta Lewin, a Principal Lawyer at Maurice Blackburn Lawyers, put it, “This case is a win for democracy and open government. This decision makes it clear that a change in the minister’s portfolio cannot be used to stifle transparency and accountability. It closes a loophole in the law – access to information cannot be scuttled by a change in jobs. The decision returns some integrity to the FOI scheme.
A screen that encouraged secrecy and reduced government accountability has been lifted.
Dreyfus appeal?
There is some possibility that Dreyfus might appeal the decision to the Full Federal Court to maintain the secrecy blanket that has until now, shrouded the work, good or bad, carried out by past departing ministers.
Politics could come into play, but then he would be ignoring the very clear judicial pronouncement made in the decision handed down today.
The balance between maintenance of secrecy and public access is one that is struck by the Parliament. It is legislation, not political or administrative conventions, that is determinative of Mr Patrick’s rights in the present case.
It’s the rule of law that must prevail, not political expediency or convenience.
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.