The vast delays plaguing Australia’s “broken” freedom of information system are shielding the activities of government from scrutiny, former senator Rex Patrick has alleged in court.
Patrick, known for his work on issues of transparency and integrity, is mounting a federal court challenge to lengthy delays involved in the Office of the Australian Information Commissioner’s handling of FOI requests.
The OAIC plays a key role in maintaining the effectiveness of the FOI system by reviewing FOI decisions made by government departments and agencies.
But Patrick argues that the delay in the OAIC’s review process is crippling the system. He has more than 20 contested FOI applications awaiting review by the OAIC. Some have been awaiting a review decision for more than three years.
The FOIs include documents relating to Snowy 2.0 project, Covid-19 border closures, the Greater Sunrise oil and gas fields in the Timor Sea, the gas reservation policy, and a decision to approve the sale of Bellamy’s Australia to the foreign-owned China Mengniu Dairy Company.
The federal court began hearing Patrick’s case on Monday, the start of a two-day hearing, which could have wide-ranging implications for the FOI system and government transparency.
Patrick is arguing that the OAIC, which is currently under no legal obligation to make decisions quickly, should be required to act without unreasonable delay. He wants the court to decide how long the OAIC should take to make decisions and when a delay can be considered unreasonable.
Barrister Tiphanie Acreman, who is acting for Patrick pro-bono, told the court on Monday that the information commissioner clearly had the power to change its own processes to speed up its FOI review processing.
“It’s clear that the respondent has the power to change the process and if the objectives of the FOI Act and the objectives of the conferral of powers on to the respondent are not being achieved, it does have the power to change the process,” she said.
In a statement prior to the hearing, Patrick said that delay was the “enemy of FOI”.
“The information commissioner is still processing FOI review requests that are almost five years old,” he said. “Five years of delay on FOI reviews turns information that would otherwise be useful to engage in policy debates or conduct government oversight into information useful only to historians.”
The legal action is being supported by the Grata Fund. The executive director, Isabelle Reinecke, said the case aimed to remove a roadblock to the effective functioning of the FOI system.
“Unreasonable delays from the OAIC in reviewing decisions ultimately conceals information by preventing time-sensitive public airing of information that is proper and necessary to hold public officials to account,” she said.
Problems with the FOI system were brought into focus this month when Leo Hardiman KC, the freedom of information commissioner, resigned less than one year into a five-year appointment.
Hardiman cited his lack of power to “increase timeliness of IC reviews and access in a way which best promotes the objects of the FOI Act”.
On Monday, the Australia Institute released a report showing FOI decisions are increasingly costly, the OAIC is swamped with reviews, and that the backlog of FOI requests has skyrocketed in the past four years.
The report also contained polling showing only one in five Australians are very confident that the FOI system gives access to documents that Australians are entitled to.
Almost three-quarters believe FOIs should only take 30 days to be decided. The institute’s program director for democracy and accountability, Bill Browne, said the system is delaying, obfuscating and holding back information in the public interest.
“Democracies depend on transparency, but Australia’s freedom of information systems are not giving the public the information they are entitled to,” he said.
“Short-term reforms may strengthen FOI law, but ultimately we need a public inquiry into the culture of the public service and its subservience to the government of the day over the people it is meant to serve.”
The hearing continues before Justice Michael Wheelahan.
