A significant court ruling concerning an application by Rex Patrick to access ministerial correspondence concerning the sports rorts saga has confirmed there is an implied obligation under the FOI Act for public servants to avoid frustrating access to a document or rights of review and appeal.
The former senator for South Australia brought the matter before the Federal Court when a freedom of information (FOI) request for documents from the time of the Morrison government was denied.
The sports rorts controversy that Patrick wanted information about saw Bridget McKenzie resign from her ministerial portfolio after a scathing audit report and a PM&C investigation into maladministration of the community sports infrastructure program.
Access to letters that include advice from then attorney-general Christian Porter to Scott Morrison was rejected on the basis that a ministerial reshuffle and a change in government meant they were technically no longer in possession of the relevant minister.
On Thursday, Justice Natalie Charlesworth handed down a decision that said the facts and circumstances in existence at the time an FOI request was lodged needed to be assessed before determining whether a document was an official document of a minister.
It was not adequate for the government to make an FOI decision based on some later review date, after which the minister in question may have changed.
“This loophole was a major roadblock to a functional FOI system and created a significant gap in the accountability of government and the public service,” Grata Fund executive director Isabelle Reinecke said.
“We welcome the court’s decision, which will improve transparency in Australian politics, given ministerial reshuffles are increasingly common.”
The matter was initiated in the Federal Court of Australia in June 2023 after months of waylaying, with the support of the Grata Fund and Maurice Blackburn Lawyers.
Patrick initially lodged an FOI application to Porter for the letters in 2020, which the former A-G then refused.
A review of Porter’s FOI rejection to the information commissioner was still on foot when Michaelia Cash was appointed A-G in 2021, and subsequently replaced by Mark Dreyfus when Labor was voted into power in 2022.
The information commissioner ultimately decided in 2023 that the documents could not be subject to an FOI application because they were no longer in possession of the A-G of the day.
This week’s Federal Court decision means, however, that the application is again before the information commissioner.
Jacinta Lewin, a principal lawyer at Maurice Blackburn, said the decision returned some integrity to the FOI scheme because the ruling made it clear that a change of ministerial portfolio could not be lawfully used to stifle transparency and accountability
“A screen that encouraged secrecy and reduced government accountability has been lifted,” Lewin said.
“This case is a win for democracy and open government.”
Patrick said the decision was a win for all Australians who want to see greater transparency and accountability restored to our political system.
The former senator for SA also vowed to continue the fight to get access to the documents, which have since been found during the course of the government’s preparation for the court challenge.
“I’m disappointed that the attorney-general fought me on this and spent close to $200K of taxpayer’s money doing so,” Patrick said.
“The transparency fight goes on. Whilst the matter is now one of history, Australians are entitled to the truth. We might also learn something that will assist in avoiding a future rort.”
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