by Isabelle Reinecke. Published in Crikey.com.
Christian Porter, Scott Morrison, Anthony Albanese. Whose ministerial secrets could be aired after a Federal Court closed a dodgy loophole?
Last week saw a major breakthrough for transparency in Australian politics, albeit not one of the Albanese government’s making.
After a lengthy legal battle waged by former senator Rex Patrick and up to $200,000 spent by the Commonwealth arguing against it, the Federal Court handed down a ruling outlawing the commonplace practice of denying FOI access to ministerial documents simply because the responsible minister has left office.
The case was brought by Patrick after he was unable to obtain ministerial documents relating to the infamous “sports rorts” scandal, after Christian Porter left the Attorney-General’s Office, and the documents were considered “no longer in the possession of the relevant minister”. Of the various creative excuses offered by politicians attempting to evade public scrutiny, it had to be one of the more audacious.
Legality aside, the practice never passed the pub test. By making documents unobtainable via FOI after a change of minister, governments were effectively able to hide information about scandals and corruption through portfolio shuffling — an event that took place five times under the previous Coalition government.
Which leads us to what this ruling might mean going forward. The judgement applies retrospectively — so, in theory, a whole host of documents that were conveniently disappeared by outgoing ministers are now able to be unearthed.
For example, when Christian Porter used a blind trust to partly pay for his defamation case against the ABC back in 2021, his department at the time told FOI applicants that their requests for documents related to the blind trust couldn't be processed anymore because Porter had left office.
After Justice Charlesworth’s ruling last week, new FOI requests for these documents could no longer be denied, on these grounds at least.
Where else could skeletons be dragged out of the closet? Well, with the Morrison government’s five cabinet reshuffles, the possibilities are almost endless. One might be curious to know, for example, what correspondence took place when Scott Morrison appointed himself to five separate ministerial positions, from Home Affairs to Treasury.
While more contemporary examples are few and far between, with the Albanese government having maintained the same cabinet formation since coming to government, it’s worthwhile thinking about this ruling in the context of the federal election. A change of minister of course takes place when the government changes hands.
The significance of the judgment goes beyond the important documents it could unearth. The case itself is a signal to the government that it cannot continue to get away with riding roughshod over the core principles of transparency and accountability laid out in the FOI Act.
When Grata Fund — of which I am executive director and founder — conducted an investigation into the operation of the FOI system, it found that agencies and ministers rely excessively, and spuriously, on exemptions to refuse FOI requests, often take years to process requests, and generally tend toward secrecy rather than disclosure. They shamelessly game the law, knowing that oftentimes an applicant will not be able to challenge the legality of their decisions.
Rex Patrick's case, for which Grata Fund is proud to have provided support, called the government's bluff; issuing a clear warning to politicians. It's not the last one either, with another legal challenge to FOI delays that could set a precedent for government funding of statutory agencies due to land in coming months.
Patrick's legal win may have already set wheels in motion within the government, with rumours in Parliament this week indicating the case has triggered consideration of a more wholesale overhaul of FOI. While comprehensive reform is sorely needed, it's hard not to be suspicious of the intention of such a revamp. It's all the more reason for civil society and the public to stay vigilant and active in support of greater government integrity.
When Gough Whitlam and then Malcom Fraser shepherded the FOI Act through Parliament in 1982, there was a bipartisan understanding that sharing information where reasonable, and opening up decision-making on matters of high public importance, would make for stronger government and better societies.
This is how Parliament should see accountability mechanisms like FOI and whistleblower protections: not as threats or agitations but as vital tools for enabling public participation in government — collaboration that makes our schools, hospitals, jobs, industries and communities all stronger. As trust in politics plummets and dangerous conspiracists exploit high levels of institutional wariness, this has never been more important.
Until governments see the immense possibilities of working more transparently though, we’ll be taking them to court to uphold our democratic rights.