Rex v the A-G: will Labor keep Liberal dirt under the carpet?

Can a Prime Minister use a Cabinet reshuffle to sweep government dirt under the carpet? That’s a question now before the Federal Court in a case which will draw out whether Attorney-General Mark Dreyfus KC is a leader who supports transparency, or just another politician interested, first and foremost, in protecting his patch. Rex Patrick explains.

Hot potato political document

When the Auditor-General finalised his audit report into the Community Sports Infrastructure Grants Program on 15 January 2020, it quickly generated a huge ‘Sports Rorts’ controversy that began to damage the political prospects of Prime Minister Scott Morrison’s Coalition government.  

In response Morrison quickly 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 inside seats the Liberal Party were targeting in an upcoming election. 

On 22 January the then shadow Attorney-General, Mark Dreyfus, issued a media release in which he stated:

“The nation’s first law officer has been asked by Scott Morrison to scratch around for some plausible legal basis for grants made by his close colleague, the Minister for Sport, for which the Auditor-General found there was no legal authority.”

He went on to say: “Now, even before receiving this legal advice Mr Porter has cleared Bridget McKenzie, declaring it is not a rort for the minister to take a ‘slightly different view’ than her department and that it was not unusual for the minister to award a grant to her own shooting club.”

“The appointment of a member of cabinet to investigate the actions of another member of cabinet, and find ways of justifying this corrupted process from which his own election campaign benefited, is untenable.”

Dreyfus calls for transparency

Dreyfus then made a call for Attorney-General Porter’s advice to be made public;

“If the Government is serious about determining the legal basis for the sports rorts scheme, it is not enough for the Attorney-General to obtain secret advice from the Australian Government Solicitor. At a bare minimum, the Attorney-General must refer the entire scheme to the Commonwealth Solicitor-General for comprehensive and independent legal advice and commit to making that advice public.”

FOI request

Porter provided Prime Minister Morrison with his letter-of-advice on 31 January 2020. Morrison quickly used the advice in his political defence of Senator McKenzie, referring to it at a press conference on 02 February 2020, claiming that it supported the view that the Sports Minister did have legal authority to override Sports Australia.

In March 2020 I made an FOI request for access to Porter’s letter-of-advice. Porter’s office refused to give it to me. Of course, I appealed the decision to the Information Commissioner.

Possession

Back in 2013 an Information Commissioner (IC) precedent had been created that, whereby when a minister is a party to an Information Commissioner review and there is a change of minister, if the requested document is not in the new minister’s possession, the review can’t continue. 

In late February 2021, allegations were aired about a historical rape allegation relating to a current minister of the Crown. On 3 March 2021 Porter called a press conference and disclosed that he was the minister the allegations were directed at. He also professed his innocence. He went on leave immediately after the press conference and never returned to the Office of the Attorney-General.

On 30 March 2020, Senator Michaela Cash was sworn in as the new Attorney-General. And wouldn’t you know it, mindful of the 2013 precedent, Senator Cash’s office wrote to the Information Commissioner and advised her that the ‘Sports Rorts’ letter of advice I was seeking was not in her possession.

I wrote to the Information Commissioner and argued the precedent was wrong. The precedent had an absurdity about it – imagine a drug dealer being arrested for possession of drugs and getting set free by a judge because on the day he turned up to court, he was no longer in possession of the drugs.

I argued to the Information Commissioner – whether the Minister is in possession of the document is a question of fact, and the relevant time to determine that fact is by reference to the date of the original request, not when she makes her review decision.

I also argued that the letter-of-advice could not reasonably have been lost. The letter-of-advice is a document, from the moment I made the request, that was subject to legal appeal, all the way to the Hight Court if I was inclined, and therefore Porter had a duty to pass it on the Cash. The letter-of-advice was also a Commonwealth Record that had to be deposited to the National Archives once Porter was no longer a Federal Minister and no longer needed to keep hold of it.

IC late and wrong

The Information Commissioner completely ignored my argument. In a decision she made in February this year, a whooping two and half years after I asked her to fix the scam, she failed to address my legal points.

So now I find myself in the Federal Court asking a judge to correctly state the law correctly, backed by Maurice Blackburn as instructing solicitors, Stephen McDonald SC as pro-bono counsel and the Grata fund standing behind me in the event I receive an adverse cost order.

A test for the A-G

But here’s the final twist in this sad story of political and legal ducking and weaving. I’m not in court against Christian Porter, or even Michaela Cash. I’m in the Federal Court against the Attorney-General Mark Dreyfus KC MP, not because of any error he has made (yet), but because my case is against the Attorney General office holder.

I now find myself arguing points of law in order to get access to a document that the now Attorney-General himself called to be made public three years ago.

The big question is, will he argue an interpretation in the FOI Act that allows past, current and future Prime Ministers to sweep political dirt under the carpet by re-shuffling the Cabinet, or will he properly take the legal and moral high ground and consent to my proposition that’s now before the court – that the legislation should be construed in a manner that maximises transparency and accountability?

In opposition, Federal Labor spoke up long and loud in favour of government transparency.  Now they are in government, their voice on this has gone rather quiet. 

There’s already been quite a bit of backsliding once Labor bums got comfortable again in ministerial chairs. One thing’s for sure now; there’s now a court case on-foot that goes directly to the credibility of Mark Dreyfus as much as it goes to the credibility of government. I’d like to think he’ll back transparency, but after he abandoned whistleblowers Richard Boyle and David McBride, I’m just not sure. We’ll find out soon.  

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