The Albanese Government has reached a new transparency low, using a Federal Court appeal application and questionable legal tactics to avoid scrutiny. Rex Patrick reports from the trenches.
On the first occasion, you might give the government the benefit of the doubt and call it an aberration. On the second occasion, it starts to look like a strategy. When the Government’s lawyers also engage in what could be construed as an attempted shakedown, it should concern us all.
The Government has launched a second Federal Court appeal against a second Freedom of Information (FOI) win of mine, seeking their legal costs if they overturn the transparency win. That’s right:
they lost, have appealed, and want me to pay their legal costs
if they succeed in their appeal. They are sending a signal to the public and journalists that they want the price of accessing government information to be high … very high.
The new appeal concerns documents on how the Foreign Investment Review Board (FIRB) determines if a foreign acquisition is or isn’t in the national interest, and the conditions the Government imposes on a foreign buyer.
For decades, successive governments and Treasury bureaucrats have kept these decisions highly secret – largely owing to the political sensitivities arising from selling off critical assets, infrastructure, mines, ports and farmland to eager foreign buyers.
The public interest in greater transparency is clear, but they’ve been fighting against that tooth and nail.
A six-year transparency fight
I first sought access to FIRB documents back in 2020 when I was a senator. The Government promptly refused access. I challenged that access refusal with the Information Commissioner, and in 2024 she overturned the decision. The Government lost.
Rex finally cracks secret FIRB safe, finds vaults of ‘protected information’ for foreign interests
In response to the transparency win, the Government appealed the access decision to the Administrative Review Tribunal. They lost again.
Two defeats, but they weren’t done. The Government has deep pockets stuffed with taxpayers’ cash. They’re not spending their money on expensive lawyers;
they’re spending your money trying to keep their secrets locked away.
And so here we are, in a courtroom… at taxpayers’ expense.
Another case, another appeal, another loss
The FIRB court appeal follows another government appeal in June, after I won access to documents about AUKUS nuclear waste site selection.
After the appeal was initiated, eighteen crossbench MPs and Senators – including Jacqui Lambie, David Shoebridge, and Pauline Hanson – and nine civil society organisations – including the Human Rights Law Centre, Transparency International Australia, and the Alliance for Journalists’ Freedom – demanded Attorney-General Michelle Rowland intervene.
The Attorney-General ignored them.
Odd bedfellows. Pollies weigh in on unfair transparency fight
Transparency matters!
Government information is meant to be accessible, but seeking government legal costs against someone who has already won an FOI battle places an FOI applicant at a $150,000 risk.
The risk is made worse if the FOI applicant is unable to afford their own lawyers; they’ll appear unrepresented in Court and will probably lose. And for ordinary people and journalists, $150,000 is a financial risk they can’t take.
This year, the Auditor-General found 54% of FOI decisions taken to the Information Commissioner ended with more information being released,
but those wins will never happen if people fear challenging the Government.
This new “go after the winners” tactic follows the Albanese Government’s failed attempt to rewrite FOI laws to increase government secrecy and introduce new fees. Only after strong opposition from the Coalition, Greens, and the crossbench was the FOI Amendment Bill 2025 unceremoniously dumped.
Legislative harakiri. A rare win for transparency as FOI bill dead
The Albanese Government couldn’t get its attack on FOI through Parliament, and it’s instead using the Federal Court and the threat of six-figure legal bills to get the same result.
This is a cynical and financially brutal tactic intended to keep the government’s secrets buried. It’s a bludgeon being used to hammer the lid down on the truth.
Abuse of process
The question of law Treasury has asked the court to resolve is very unusual.
Question of Law filed by the Australian Government Solicitor
In other words, Treasury accuse a highly experienced former government lawyer, Administrative Review Tribunal Deputy President Damien O’Donovan, of not understanding the role of the Tribunal, of not explaining himself in his reasons, and of being illogical.
Treasury originally denied FOI access to FIRB documents on the basis that if it were given to me, the Chinese Mengui Dairy Company could sue the Government for breach of confidence. If such a lawsuit was ever lodged in a court, the law demands the company be very specific about what information they claim shouldn’t have been released.
Treasury argued in the Administrative Review Tribunal that every bit of information … every bit, including information they accepted was in the public domain … was deserving of secrecy.
They argued that FIRB was totally immune from scrutiny.
Deputy President O’Donovan was having none of that and told them so. Whilst he indicated that “some parts of the document may legitimately be the subject of confidentiality claims, the documents as a whole though could not.” He went on to conclude, “Consequently, the Secretary has failed to identify confidential information with the necessary specificity”.
It’s there in black and white. Treasury and the Australian Government Solicitor argued their case incompetently.
Treasury is taking me to court, not because the Tribunal was wrong, but because it and its lawyers screwed up. They’re asking the Court to set aside the decision and send the matter back to the Tribunal so Treasury, as they have put to me in writing, can argue the case a second time differently – this time with specificity.
Treasury, aided and abetted by the AGS, are engaging in an abuse of court process.
The shakedown
It was never Treasury’s wish to have this ‘abuse of process’ followed through to the end. I know that because they told me.
Before the AGS sent me the notice of appeal, one of their lawyers texted me … “Wanted to speak to you about a new appeal of Tribunal Decision re: FIRB docs”.
I was travelling in outback NT and so it took a few days to convene an online meeting. They indicated that Treasury wanted to solve this matter before it saw the inside of a courtroom… and to help me avoid a costs bill. They offered to withdraw from the proceeding if I was willing to tell the court I was not after some of the information in the documents.
It was a shameless attempt at a shakedown – and I told them that I knew what they were up to. They had lodged the appeal, seeking costs against me, and now wanted me to surrender or be exposed to the risk of massive costs. The lawyers denied it was a shakedown – they had to,
as such conduct would see them struck off as lawyers.
David vs Goliath
Putting the specifics of abuse of process to one side, it’s clear the Government wants to control access to information by waving about threats of costly legal bills.
“Stop at an FOI loss”, they shout!
Nobody should have to risk their house to find out what their government is doing. Journalists rely on FOI to dig out what the public needs and has a right to know. But in today’s cost-pressured media environment, editors and journalists won’t risk thousands of dollars, let alone tens of thousands, in FOI court proceedings.
Stories will go untold, at a loss to our democracy.
These two cases against me set a dangerous precedent for transparency – anyone challenging government secrecy can just be intimidated to give up because of the prospect of a crushing legal bill.
Endorsed by Albanese
And don’t think this isn’t sanctioned at the highest levels of the Labor Government. It’s not just lawyers playing legal games.
The Prime Minister made the Government’s intention to crush Freedom of Information perfectly clear with last year’s failed FOI legislative amendments. The Government cynically called it a ‘reform’ package, but it was ‘reform’ directed towards obstruction and secrecy, not openness and transparency. Since then, the Attorney-General has very deliberately ignored calls that they should not threaten successful FOI applicants with a financial bludgeon in court proceedings.
Government departments and government lawyers clearly know what the government regards as acceptable tactics in trying to suppress the release of information. The lawyers aren’t freelancing; they’ve got the word from their political masters.
Prime Minister Albanese clearly hates Freedom of Information, contrary to how he talked about the importance of transparency before being elected PM. Behind his often timid, mouse-like demeanour lurks a Stalinist mindset, obsessed with secrecy and control.
FOI means people can be well informed to make up their own minds about major public issues; not be limited to carefully curated scraps of information the government chooses to release at times of its choosing. FOI lets people see how government works on the inside and whether our politicians and bureaucrats are really working with the public interest in mind, not just their own political interests. This is anathema for a political control freak such as Albanese.
I was in Court last week seeking its protection from the deep-pocketed, threatening monster that the Albanese Government is. I’m seeking to uphold both my transparency wins and, along the way, get a five-cent protective cost order to protect me and set a precedent
to stop the Government using legal cost threats against future FOI winners.
Hopefully the Court will read my submissions and protect the public from the Albanese Government’s new secrecy strategy.
A big fat ‘No’. Win on baby-food-to-China sale no fix for foreign investment secrecy
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."