Former senator and now transparency advocate Rex Patrick has filed an appeal challenging the Federal Court's May 2023 determination that multi-year delays by the Information Commissioner in processing Freedom of Information (FOI) reviews were not unreasonable. Patrick’s appeal will be heard by the Full Federal Court.

In its determination, the Court recognised that delays in processing seven FOI applications — in some cases almost three years — were very significant. But it ultimately determined that the days were not legally unreasonable due to underfunding of the Office of the Australian Information Commissioner by successive governments.

Patrick's appeal will argue the primary Judge failed to give proper effect to the requirement in the FOI Act that access to information be made in a prompt or timely manner, and consequently wrongly determined that delays faced were “reasonable”.

If Patrick is successful the appeal could have wide reaching ramifications for the funding of the FOI system, the speed of FOI processes, and delays by other statutory bodies.

Late last month, a Senate Inquiry probing the operation of FOI laws revealed a troubling picture of a system in crisis. Former FOI Commissioner Leo Hardiman made explosive assertions about how his attempts to address huge delays in the system were repeatedly undermined by senior leadership.

Incredibly, he claimed that leadership went so far as to present what was termed by Greens Senator David Shoebridge as a “false narrative” about the availability of funding to the Federal Court — in reference to the original argument in Mr Patrick's case — in an effort to defend itself against unreasonable delays.

Rex Patrick, Director of Transparency Warrior, said:

“It just can’t be right that a transparency right granted to citizens by the parliament can be stripped away by a government that chooses to squeeze funding to the very office that helps facilitate the transparency right. 

“Delay is the enemy of FOI. There’s no point getting access to government documents several years after they lose their relevance, unless you’re an historian. Governments know that, and the current Labor Government have adopted the same funding squeeze approach to the Information Commissioner as past Liberal Governments 

“If a Government is permitted to take away a citizen’s legal right to access Government documents by simply not funding the agencies that deliver those rights, then the Government will be able to take away all sorts of rights in the same way. There is importance in this case that goes beyond FOI.”

The case is supported by The Australia Institute, Matilda Legal and Grata Fund, who is an advocacy partner, and Mr Patrick’s legal team: MSM Legal, barrister Ms Tiphanie Acreman and senior counsel Stephen McDonald.

Isabelle Reinecke, Executive Director, Grata Fund said: 

“Being under-resourced should never be an acceptable excuse for a government body’s failure to perform its basic statutory obligations. Imagine the BOM apologising that it can’t communicate the weather because it’s so under-resourced? This is an alarming breach of the separation of powers - the executive government has effectively neutered a statutory body’s ability to do the job Parliament has given it. The government has a choice - increase funding directly, or take the issue back to Parliament to resolve.

“Australia’s FOI system remains broken, almost a year and a half into the Albanese Government. The regime is plagued by massive delays, effectively enabling government bodies to avoid scrutiny and blocking healthy participation when it counts. This case tackles a critical roadblock in the FOI system.”

Additional:

• Link to Senate Inquiry hearing transcript of Leo Hardiman’s evidence
• Media release: Broken FOI system in Federal Court as transparency warrior Rex Patrick, tackles delays, 20 March 2023

For more information or to request interviews please contact: Madeleine Burkitt, 0435 045 516, [email protected]

Available for interview: 

• Rex Patrick, Director, Transparency Warrior
• Isabelle Reinecke, Executive Director, Grata Fund