Rex Patrick tackles the Information Commissioner’s decision that former Attorney General Christian Porter’s documents are no longer “official Ministerial documents”.
Today, Tuesday 28 March 2023, former Senator and transparency advocate Rex Patrick filed a case in the Adelaide Registry of the Federal Court seeking to address a major systemic failure in the Freedom of Information (FOI) system centred around documents that are unattainable when Ministers leave their roles. In this case, the documents sought are letters sent by the then Attorney-General (AG) Christian Porter MP to the Prime Minister containing advice about the grant program which was the subject of the controversial “Sports Rorts” affair.
The first of its kind in the Federal Court, this is a brand new challenge to FOI being led by Rex Patrick, and the third piece of litigation supported by advocacy partner Grata Fund as part of its FOI Project, which identifies yet another major roadblock to a functional FOI system - a system that is key to the accountability of government and the public service.
The Information Commissioner's decision means that when a Minister resigns or leaves office, documents that they take with them are no longer official documents that must be disclosed under FOI law. This approach has led to a significant gap in accountability for acts of any sitting government. It is especially problematic given ministerial reshuffles are increasingly common in contemporary Australian politics, particularly after corruption scandals. It leads to the absurd consequence that a Minister can escape scrutiny and shield information from being released under FOI laws simply by resigning or being shuffled around to a new position.
This case has the potential to ensure that there is continuity in critical government documents and that they remain accessible with any change of Minister or government. If this case is successful, it will enable journalists and ordinary Australians to better hold the government to account and to strengthen the right to information under FOI laws. And ensure Ministers and scandals cannot hide behind a change of job.
Rex Patrick says “Attorney General Porter confirmed he had the Sports Rorts letter I requested under FOI, but refused to let me have it. I appealed his decision to the Information Commissioner, but when Senator Cash took over… the letter was declared no longer in the possession of Attorney-General Cash.”
“The Information Commissioner’s erroneous decision means that Governments can sweep the dirt of a departing minister underneath the carpet. This could not have been the intention of the Parliament and I am asking the Federal Court to correct the Information Commissioner’s misunderstanding of the law.”
Maurice Blackburn is acting for Rex Patrick in the Federal Court proceeding. Jacinta Lewin, Principal Lawyer says “Changes in ministerial portfolios should not be a basis for denying access to information which goes to the heart of transparency and accountability in our government.”
Grata Fund is an advocacy partner on this case. Executive Director, Isabelle Reinecke, says “Governments hiding information about scandals and corruption through portfolio shuffles does not pass the pub test. Australians are fed up with politicians gaming the system to hide from the public accountability and scrutiny that is simply part of their job. This FOI loophole creates an untenable situation for our democracy that severely damages the Australian public’s ability to hold politicians accountable in a timely manner.”
This is the second case brought by Mr Patrick, and the third in a series of litigation identified by Grata Fund as necessary to fix the FOI system in their FOI Hit List Report, released in 2021.
It is expected that this case will be heard in the Federal Court later this year.
For more information or to request interviews please contact:
Terri King at Pitch on 0488036740 or [email protected]
Available for interview:
- Rex Patrick, Director, Transparency Warrior
- Isabelle Reinecke, Executive Director, Grata Fund
BACKGROUND TO THE FOI REQUEST
In 2020, then Senator Rex Patrick made an FOI application to the Attorney-General’s Department for documents sent by then Attorney-General Christian Porter MP to the Prime Minister containing advice relating to the Community Sport Infrastructure Grant Program. This grant program was the subject of the “Sports Rorts” affair, which was exposed when the Australian National Audit Office reported that then Minister Bridget McKenzie allocated grants to marginal or targeted electorates against recommendations made by Sport Australia.
In response to Mr Patrick’s FOI application, then Attorney-General Porter identified the document but refused access, claiming exemptions under the FOI Act.
On 4 June 2020, Mr Patrick applied to the Information Commissioner for a review of the refusal decision. Mr Patrick’s review application sat with the Information Commissioner for almost three years, waiting for determination. During this time, Mr Porter resigned as Attorney-General and was replaced by Senator Michaelia Cash in March 2021, before Mark Dreyfus KC was appointed after the May 2022 election. The Information Commissioner never used her powers to call for the document before Mr Porter had resigned. The new Attorneys-General and their departments told the Information Commissioner that they could not locate the Sports Rorts advice document.
On 28 February 2023, the Information Commissioner issued a decision concluding that the Sports Rorts advice was no longer in the possession of the Minister and therefore not subject to release under the FOI Act. She chose not to exercise her information-gathering powers to contact Mr Porter or any other individuals who might have a copy of the document. This approach essentially allowed a former Attorney-General to bury a politically sensitive document from the public, and prevented documents related to a political controversy from being released under FOI laws.
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Grata Fund builds a fairer world by advocating for a robust democracy & harnessing the power of high impact litigation to create structural change. We focus on communities, cases and campaigns that have the potential to break systemic gridlocks across human rights, climate action and democratic freedoms.