Former senator for South Australia Rex Patrick has had a win on his quest for confidential Morrison-era government documents. The Federal Court on Thursday ruled in his favour, overturning a previous decision made by the Office of the Information Commissioner that said portfolio changes ended a chain of possession by a minister and therefore rendered documents unable to be released for freedom of information requests.
It is another step in a four-year-long process for Patrick, who in February 2020 requested under the FOI Act any documents from then attorney-general Christian Porter relating to the former Coalition government’s sports rorts saga, overseen by former sports minister Bridget McKenzie.
The audit office revealed in January of that year that the former government had awarded $100 million in grants to community sporting organisations that were not based on merit but instead “targeted” key seats for the Coalition at the 2019 federal election.
On application, Patrick was told there was one document within the scope of that request, but that he was refused access because it related to cabinet documents and carried legal privilege.
Patrick pursued his rights of review with the Australian information commissioner, but in the interim, Porter was moved out of the Attorney-General’s portfolio amid historical rape allegations, which he has always denied, over which he was suing the ABC for defamation. Senator for Western Australia Michaelia Cash took up the post until the 2022 election, which saw Mark Dreyfus take over on the change of government.
On review, both Cash and Dreyfus told the information commissioner that the document wasn’t in their possession, and in 2023, the information commissioner decided that the documents were therefore not subject to release under freedom of information laws. The government later claimed to have lost the document, but the document was later found in preparation for Patrick’s case in the Federal Court.
This week, Justice Natalie Charlesworth in the Federal Court held that the information commissioner erred in its construction of the FOI Act, and instead that a document should be assessed by reference to the circumstances of when an FOI request was lodged, rather than a later review date.
This acts to close a loophole in the FOI Act by which governments could avoid disclosing certain documents via a cabinet reshuffle.
In her decision, Charlesworth said that while it was common practice by politicians to not transfer documents in some cases, and that there may be “very strong political resistance” to doing so, “the FOI Act is not concerned with party-political matters”.
“If there be a common practice of [this] kind … it is not one that is authorised or contemplated by the FOI Act and it should stop,” she said.
Patrick, speaking to Crikey, said the government would be “putting politics above the rule of law” if it were to appeal the judgment.
Asked whether there was any unease that broadening the construction of possession would have an unexpected negative effect on FOI outcomes by increasing the burden on agency and department staff, Patrick said he was “not particularly concerned”.
“I don’t think there’s any ability for an office to say, ‘I don’t have the resources to search for this document,’” he said.
Patrick said a significant part of the issue with the FOI system was not a legal one, but related to how long FOI determinations take.
“Part of the problem in this particular matter was caused by the information commissioner herself. She got an FOI review application, and she took so long that there were four ministerial changes in the process of her carrying out her duty.”
Last year, Crikey brought you REDACTED, an eight-part series showcasing how Australia’s broken FOI system stops the flow of information. Veteran political journalist Laurie Oakes once described the system as “a sick joke, marked by delays, obstruction and a presumption against releasing documents”.
A spokesperson for the attorney-general said that “the government will carefully consider the Federal Court’s judgment”.
Asked what his next steps would be, Patrick said he would continue his “occupation” of information requests.
“An FOI a day stops democracy decay, that’s my saying. I don’t feel well of an evening if I haven’t submitted an FOI.”
Patrick told Crikey he had 30 to 40 pending FOI requests going at any one time, but stressed he was “not vexatious in any way. I use the act for the purposes it’s intended.”
“There would be very few departments that haven’t received an FOI from me,” he said.
Patrick’s case will now be remitted to the information commissioner for determination.
