The Albanese government will urge the federal court to find that ministerial reshuffles wipe out its obligation to release certain documents under freedom of information law, insisting in a landmark appeal case that documents stop being official and are put beyond public reach whenever a minister changes.
On Friday, the court will hear the government’s appeal against a ruling made in March that “official documents of government” do not suddenly become unofficial just because a new minister takes over the relevant portfolio.
In the original case brought by former independent senator turned FoI campaigner Rex Patrick, the court ruled that “possession” of documents continues from one minister to another provided an FoI request has been lodged before the change occurs. It found this is true whether the new minister is from the same political party or is appointed after a change of government.
As a result, Justice Natalie Charlesworth also found that the common practice of shredding some ministerial documents when a government loses office is possibly criminal and must stop.
Patrick was originally seeking Morrison government documents related to sports grants allocations.
In his appeal submission, the attorney general, Mark Dreyfus, argues that Charlesworth erred because the status of ministerial documents can change over time and depends centrally on who holds the job. Dreyfus argues that whether or not documents are “official” should not only be determined once, when an FoI application is lodged, but again at the end of the often lengthy assessment process.
He says their status should be re-examined right before a decision is finalised because the act of changing ministers automatically affects it, so that even if the documents are found to be otherwisereleasable, a change of incumbent negates that finding.
He submits that a minister is not expected to transfer possession of documents to a successor, “especially a minister of a different government”. He also says Charlesworth had no basis for implying that former ministers had “uncertain obligations” to preserve and deliver documents that were subject to an FoI application, nor that incumbent successors had any right to access them.
“The notion that a new Minister could demand production of advice provided by a prior Minister pays no regard to concepts inherent in the system of responsible Government, including the confidentiality of Cabinet documents of a prior government,” Dreyfus’s submission says. It says this would also require a new document retention system “contrary to Australian Government practice over many decades”.
Backed by the Grata Fund and Maurice Blackburn lawyers, Rex Patrick argues that under Dreyfus’ construction, FoI requests “would be frustrated by changes in government or Minister” and the executive government’s compliance with its statutory duty to give access to documents “will depend on the time within a political cycle at which a request is made”.
His submission says that would mean official documents “can be permanently shielded from public scrutiny by executive fiat” and that requests made to a minister become pointless, “with no one succeeding to the statutory duty to deal with the request”, even if the new minister can physically access the documents.
“The AG’s construction would substantially undermine a constitutionally significant statute by which Parliament has sought to enhance public scrutiny of Ministers and their Departments,” Patrick’s submission says.
