Former independent senator Rex Patrick says Australia’s broken freedom of information system desperately needs reform as his quest for access to national cabinet papers deepens.
In August 2021, the former Senate crossbencher successfully argued that the exemption provided by cabinet confidentiality under the Freedom of Information Act does not extend to the prime minister’s national cabinet meetings with state and territory leaders.
Patrick says the landmark decision by Justice Richard White in the Administrative Appeals Tribunal (AAT) — described by Labor at the time as a “devastating” blow to the Morrison government’s attempt to “avoid transparency” — should have “opened the vault” to records and information about national cabinet.
Instead, he says, the Morrison government essentially ignored the decision and continued to resist disclosure on baseless grounds, forcing Patrick to return to the AAT.
“They basically said Justice White did not have [before him] a statement by all the first ministers and the prime minister saying they’d agreed to confidentiality,” Patrick says.
“Of course, that argument’s going to fail because there is no general exemption [to disclosure] for anything the government simply claims is confidential. It’s a house of cards argument.”
Last year, separate FOI requests for the agenda and minutes of the June 2022 national cabinet meeting convened by Prime Minister Anthony Albanese were also refused on the basis that disclosure could harm intergovernmental relations.
“Disclosing the requested document would inhibit the ability of first ministers to conduct robust deliberations and discussions with their counterparts,” Lauren Le Cerf, an assistant secretary in the Department of Prime Minister and Cabinet, said.
“This would undermine trust [and] prevent full and frank discussions that achieve the best outcomes for the Australian public.”
In late December, Patrick successfully persuaded the information commissioner to refer Le Cerf’s decision directly to the AAT, in the hope of joining the matter to his appeal concerning the Morrison national cabinet papers.
Separately, Patrick’s fight to obtain former attorney-general Christian Porter’s legal advice regarding the sports rorts grants affair is also ongoing, as he attempts to reverse a low-level but long-standing precedent which permits disclosure to be refused in circumstances where a new minister takes the portfolio.
“I haven’t given up on the document being found,” Patrick says. “The argument [the information commissioner is] using is that if a new minister comes in and they’re not in possession of the document, then the review can’t continue. The idea that a government document can disappear is frankly ridiculous.”
It’s a sentiment shared by barrister Geoffrey Watson SC, who says there is a deep-seated culture of non-compliance within government when it comes to open government.
“There’s an overwhelming tendency on the part of government to be astonishingly obstructive,” he says. “The mindset is that if there’s an even vaguely conceivable or tendentious argument to keep it secret, then keep it secret.”
Watson says this “certain lawlessness”, which runs entirely contrary to the principles underpinning the FOI Act, extends to procedural considerations, such as the inordinate delay that invariably accompanies decisions by bureaucrats and, on review, the information commissioner.
“More than half of the responses are in breach of statutory requirements — it’s an exceptional degree of non-compliance,” he says. “The information commissioner, which has a statutory right to deal speedily and cheaply with reviews of FOI decisions, instead runs it like a prolonged court application and routinely takes two or three years to give a response.
“The office of the information commissioner should be completely reconstructed and probably the best way to do that is to start again because it has a mindset so completely divorced from its purpose. We’d be better off without it.”
Patrick agrees, pointing out he has commenced proceedings in the Federal Court against the information commissioner precisely on the question of delay or what constitutes a reasonable time frame within which to make a decision.
“They’ve spent over $700,000 in legal fees thus far,” he says. “In principle, nothing in the FOI Act really needs to change. It’s the culture in the departments and the information commissioner that must change, and this is part of my battle to try to reform this system.”
