First a Morrison government whitewash, next disappearing advice from former Attorney-General Christian Porter. On the trail of government rorts, Transparency Warrior Rex Patrick finds obfuscation at every turn and a broken Freedom of Information regime which attacks the heart of democracy and responsible government.
When it comes to governments who operate secretly, it’s often a hard fight to get to the truth. However, transparency fights are worth having, not only to extract information that politicians and bureaucrats would rather keep hidden; but also because of what those fights reveal about the state of public administration and the laws that are meant to support good governance.
So this is an illustrative tale about what’s involved in extracting the truth from an obstructive government and the weaknesses of our Freedom of Information laws.
Missing piece of the puzzle
Two documents were commissioned by Prime Minister Scott Morrison in response to the political and public furore that followed the Auditor-General January 2020 ‘Sports Rorts’ report.
The first document was Department of Prime Minister and Cabinet Secretary Philip ‘fixer’ Gaetjens’ review into whether Sport Minister Senator Bridget McKenzie’s awarding of grants, weeks out from the 2019 election, that favoured marginal or targeted electorates rather than the recommendations of Sport Australia, had breached the Prime Minister’s Ministerial Standards.
The second document was legal advice from Attorney-General Christian Porter as to whether Senator McKenzie was lawfully empowered to override Sports Australia’s recommendations.
After a long and intensive Freedom of Information (FOI) battle, the Gaetjens review has been released. The document was eventually released in full, but only after the 2022 Federal election. Unsurprisingly, the Gaetjens’ report was a political whitewash of McKenzie’s action.
A Perfect Slime: Scott Morrison’s slippery Sports Rorts report just the fix for Bridget McKenzie
However Attorney-General Porter’s legal advice has not been released. It still remains secret.
The legal advice exists, but you can’t have it
In March 2020, I made an FOI request for access to the Porter advice commissioned by Prime Minister Morrison.
Porter’s Chief of Staff, Tim Wellington, responded to my FOI request in April 2020 stating one document that matched my request existed. But he claimed the document was:
- Legal advice, and therefore subject to Legal Professional Privilege; and
- A Cabinet document
He refused me access to the documents.
Rape allegation
On 4 July 2020, I referred Mr Wellington’s decision to the Information Commissioner for review. Regrettably, the Information Commissioner takes a completely unreasonable time frame to conduct her FOI reviews, something that has contributed somewhat to the farce that has become of this particular request for access to information.
On 3 March 2021, nothing much was happening in the Office of the Australian Information Commissioner. But a lot was happening over at Parliament House. Over the preceding week, allegations had been aired about a historical rape allegation relating to a current minister of the crown. Porter called a press conference and disclosed that he was the minister that the allegations were directed at and also professed his innocence.
He went on leave immediately after the press conference. He never returned to the Offices of the Attorney-General.
A new Attorney-General and a missing commonwealth record
On 30 March 2021, Christian Porter ceased to be the Attorney-General and was appointed as Minister for Industry, Science and Technology. Senator Michaelia Cash was sworn in as the new Attorney-General.
This had a significant impact on my challenge to the FOI decision that had been made by Porter’s Chief of Staff. .
Back in 2013 an Information Commissioner 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.
And wouldn’t you know it, on 6 October 2021 Senator Cash’s chief of staff, Daniel Try, wrote to the Information Commissioner and advised her that the legal advice I was seeking was not in the possession of the new Attorney General.
The Information Commissioner advised me of this fact and sought to discontinue the review. I’m refusing to allow this.
Falk Lines: Information Commissioner fights for the right to hide information indefinitely, que?
A fight that has to be had
That 2013 precedent was both wrong and dangerous and needs to be challenged.
We cannot have a situation where a government can wipe the FOI slate clean with a changing out of a minister. It’s all too convenient and a direct assault on the integrity and effectiveness of out FOI regime, and responsible government.
Whether a document is in the possession of a minister is a question of fact that must be determined at the time the FOI request is made. Otherwise, a request can be made by someone, and official can find the document and shred it, and simply say the Minister or Agency is no longer in possession of it.
I’m not alone in my views about the wrongfulness of the Information Commissioner’s precedent. The Grata Fund is a public interest organisation fund set up to help people overcome the cost barriers of litigation to take on governments in relation to climate justice, human rights, and democratic freedoms. This wrong decision is on the Grata Fund’s FOI litigation hit list.
Irrespective of whether the document is lost or not, I want the Information Commissioner to make her decision, consistent with the current precedent if necessary, so that I can appeal it to the Administrative Appeals Tribunal. But the Information Commissioner has just refused to progress her review. It has sat idle for almost 18 months. Remarkably, after the former Government swept this matter into an Orwellian memory hole, the Information Commissioner wants to do likewise.
Finally, in respect of the eventual FOI fight over the actual status of Porter’s advice, the document will not be found to be a Cabinet document for the same reasons that Gaetjens’ review wasn’t, and the document will not be found to be subject to legal professional privilege for the reasons set out here (for those who might be curious as to why, see boxed text below).
The dog ate my Cabinet Paper
Never flustered, and remembering that the document was claimed to be a Cabinet document, in November 2021 I put in a new FOI request to the Department of Prime Minister and Cabinet, the guardians of all things to do with Cabinet.
But they can’t find the document.
In a letter to the Information Commissioner in December they advised ‘we’ve searched everywhere’. Referring to the original FOI request to the Attorney General, they also went on to obfuscate:
All decisions made under the FOI Act are undertaken by nominated delegates, who make their decision independently. The decision made by the Attorney-General is not a decision of the Department, and it is not appropriate for the Department to further comment.
Of course, that’s codswallop. Paragraph 140 of the Cabinet Handbook states the following:
Requests for access to Cabinet documents and Cabinet-related material under the FOI Act must be handled in consultation with the Freedom of Information Coordinator of PM&C.
Gaetjens un-buries the buried
And of course, as the Cabinet Division of PM&C ducks and weaves, as though they’ve never seen the letter of advice, it turns out they’ve been caught out by the very man who had a reputation for burying the bodies in the Morrison Government, Gaetjens, who wrote in his ‘Sports Rorts’ report:
My advice only relates to apparent breaches of the Standards. It does not cover the matter of whether or not the Minister had legal authority to provide final approval for eligible applications. I note you have sought advice from the Attorney-General on this legal matter. In my advice to you, I have accepted the fact that the Minister provided final approval and apply the principles of the Standards to that fact.
The Cabinet Division of PM&C cannot deny its existence.
Where to?
Neither the Attorney-General’s Office, the Department of Prime Minister & Cabinet or the Information Commissioner want this to continue. But it will. It cannot be that important documents, legal advice, Cabinet documents just disappear.
Failure to safely store or pass Commonwealth Records to the National Archives is a strict liability criminal offence.
I’m pushing back asking for the Information Commission to, in exercise of powers granted to her by the Parliament, direct former Prime Minister Morrison and Attorney General to produce the documents. I’ve asked they issue the same order to Tim Wellington.
I’ve also pointed out to the Information Commissioner that former Cabinet Official, Ms Stephanie Foster, told the Senate on 2 March 2020. It turns out that some documents (that deal with grubbiness) prepared for the then Governance Committee of Cabinet “are typically not stored on the cabinet system, and in this case that was not stored on the cabinet system.”
Foster went on to say, “the way this practice works, on a regular basis, is that for particularly sensitive documents, they are provided in a sleeve—with ‘Do not remove from cabinet room’.
It’s a practice that would make the dodgy brothers proud.
Sadly, as we learn more about the inner workings of the Morrison inner circle, we realise this practice was just one of many that do not hold up under scrutiny. Often it’s the hardest FOI fights that shine a harsh but necessary light on political expedience and broken governance.
Half a million squandered by Information Commissioner on frustrating public’s right to know
| Can the Attorney-General Give Legal Advice Protected by Privilege?First Law Officer
The Attorney-General is often referred to as ‘the first law officer’. But neither of those titles means that he or she can give legal advice to Ministers or the Cabinet that is protected by legal professional privilege. In order to attract legal professional privilege, amongst other things, advice must be given in the context of a lawyer lawyer-client relationship characterised by independence. On the understanding that the Attorney-General penned the letter of legal advice on Sports Rorts to the Prime Minister, the privilege claim fails as the Attorney-General lacks the necessary independence. History Some history of role of Attorney-General is relevant, as is the distinction between the UK Attorney-General and the Australian Attorney-General, particularly in relation to independence. The Office of the Attorney General is a very old office. Its origins can be traced back to thirteenth century England and the very early beginnings of the legal profession itself. Because the sovereign was unable to appear in his own courts to plead in any case affecting his interests, an attorney, the King’s Attorney, did so to maintain the interests of the sovereign before the Royal Courts. The first record of the title ‘Attorney-General’ appeared in 1461 and it was about that time the Attorney General started giving advice to the House of Lords. By the beginning of the seventeenth century it was the Attorney General who was generally consulted by the government regarding points of law and who had conduct of important State trials. The role ultimately expanded to Parliament and included the drafting of legislation. It is noted that although the modern-day UK Attorney-General is a politician, he or she is also primarily a lawyer. The UK Attorney-General’s role in government is confined to providing legal advice to the government, representing the government in court, exercising control over major prosecutions and discharging the legal functions of the sovereign. Although the UK Attorney-General is usually a member of the House of Commons, they are not included in Cabinet. The UK Attorney-General does not have ministerial responsibility for a government department. Ministerial responsibility for the administration of justice rests with the Lord Chancellor and, to a certain extent, the Home Secretary, who are both members of Cabinet. The office of the Attorney-General was transplanted into Australian colonies with the reception of English law. The first Attorneys-General in the Australian colonies were drawn from the English Bar. They were appointed by the UK Government as ex officio members of the executive and the Legislative Council and played a substantial role on colonial politics. Over time, and including in the Federal sphere, the Attorneys-General, were drawn from elected members, and have very much become politicians first and foremost. The Proper Source of Legal Advice The Attorney-General has no constitutional or statutory role as legal adviser and has, indeed, been divested of the responsibility of giving legal advice to the Prime Minister and Cabinet by the Parliament in the aforementioned legislation. The Parliamentary Counsel Act 1970 lays clear responsibility for drafting legislation for Government on The Office of Parliamentary Counsel. The Law Officer’s Act makes it clear that it is the Solicitor-General who has responsibility for giving legal advice to Ministers and Cabinet. The Australian Government Solicitor (AGS), by way of the Judiciary Act, can also advise Government and Ministers. The Director of Public Prosecution conducts prosecutions. The Attorney-General has no statutory responsibility for the giving of legal advice. Indeed, the Attorney-General is not required to be a lawyer. Senator Katy Gallagher, who has no legal degree, was sworn into the role of Attorney-General Gallagher as part of an interim five-person ministry for nine days, until the full Albanese ministry was commissioned. And whilst the statutes allow the Attorney-General to intervene in Court proceedings, the Attorney normally uses the AGS or external council to represent him. When he stands in the Court room himself, he doesn’t do so as a lawyer, rather as a self-represented party. Lack of Independence Christian Porter was a lawyer and retained his practicing certificate whilst he served in the Parliament. But he doesn’t have the necessary independence to ministers and the Cabinet to bring a disinterested mind to bear on the subject matter of the legal advice. His independence is infected in a number of ways:
The Attorney-General cannot bring a disinterested mind to the task of providing legal advice to the Prime Minister (and Cabinet), and will be affected by personal loyalties to the Prime Minister, the cabinet, the PM’s ministry and his party. His advice cannot be protected by any FOI legal professional privilege exemption. |
Come on Mr Attorney-General, transparency is more than a cry for opposition benches
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.