The federal government is attempting to cast “unusual” secrecy over a battle for documents that would shed light on its handling of an investigation into the illegal destruction of critically endangered grasslands by a company part-owned by former energy minister Angus Taylor.
On Monday, the administrative appeals tribunal (AAT) began hearing a case relating to freedom of information requests made three years ago by Guardian reporter Lisa Cox, who is seeking internal departmental documents relating to the poisoning of 28.5 hectares of Monaro grasslands at a property in Corrowong.
That property was held by Jam Land, a company part-owned by then energy minister Angus Taylor and his brother Richard.
The environment department commenced an investigation into the poisoning in 2016. Internal records have already shown that, months after the investigation began, someone in federal parliament raised an issue about “possible compliance action” over grasslands with then environment minister Josh Frydenberg.
Frydenberg’s office then sought further information from his department about the listing of the grassland as critically endangered, asking officials to meet with Taylor. That meeting took place in March 2017. The tribunal has heard that an absence of subsequent government records may suggest there was then a break or hiatus in the investigation.
Taylor has previously said that he “did not make any representations to federal or state authorities in relation to any compliance action being undertaken”. The department has previously said officials did not discuss the compliance matter with Taylor.
Both Taylor and Frydenberg have said the meeting was focused on the “technical aspects” of the grasslands listing.
Cox is seeking documents and the removal of redactions that would reveal more detail about the meetings and any internal government discussions about potential policy changes related to the grasslands.
But the department is fighting her freedom of information request, claiming cabinet confidentiality applies to some of the material, while arguing the revelation of some documents would undermine its ability to conduct investigations or enforcement. It has also claimed some of the requested material would reveal deliberative processes.
The dispute has prompted an appeal to the AAT.
On Monday morning, the department applied to conduct the AAT hearing partially in secret, to prevent any premature disclosure of material it claims is exempt from freedom of information laws.
The government also wants to take new and additional oral evidence from its witnesses in the private session, which would be conducted in the absence of both Cox and her barrister, Geoffrey Watson SC.
Watson described the approach as “unusual” and opposed it. He criticised the government’s approach in seeking to adduce fresh oral evidence in a closed hearing, which neither Watson nor Cox could attend.
Watson described it as “bad practice”.
“This is a very strange procedure for a model litigant to be adopting at this time,” he said. “It really is very odd.”
Richard Knowles SC, acting for the department, said there was nothing unusual about holding private hearings in cases of this kind, to prevent the information which the government claimed to be exempt from disclosure from becoming public inadvertently.
“This proposal … isn’t something that arises infrequently in proceedings of this kind,” he said.
Knowles proposed that the tribunal could ask questions of the government’s witnesses, in the place of Watson and Cox’s lawyers.
“In terms of any unfairness to Ms Cox, that can be ameliorated by the tribunal asking questions of the witnesses.”
The deputy president, Peter Britten-Jones, questioned why the new oral evidence the government was seeking to adduce from its experts in the secret hearing was not included in the form of closed affidavits. That would have allowed him to assess the evidence in advance and decide whether it needed to be treated confidentially and kept from Cox and her lawyers.
“In a sense, I’ll have to be dealing with the matter on the run a little bit.”
The tribunal ordered the government to prepare new confidential affidavits, which would include the new evidence it wanted to adduce orally in a closed hearing.
It otherwise has deferred the question of whether it needed to hold part of the hearing in private.
The hearing continues.
