Legal win closes FOI loophole for ministerial reshuffles

21 March 2024

Mr Patrick, a former senator for South Australia, brought the legal challenge following a denied FOI request for documents connected with the ‘sports rorts’ affair.

He was refused access after a ministerial reshuffle and a change in government meant the documents were considered no longer in possession of the relevant minister.

In the decision handed down in court today, Justice Charlesworth said whether a document is an official document of a minister is to be assessed by reference to the facts and circumstances in existence at the time an FOI request is lodged, not some later review date after which the minister may have changed.

Further, Her Honour determined that there is an implied obligation under the FOI Act, imposed on those who receive FOI requests, to take such steps as are necessary to not frustrate access to a document or rights of review and appeal.

The FOI matter has now been remitted back to the Information Commissioner to determine Mr Patrick’s review request in accordance with law. Mr Patrick will now continue his fight to get access to the documents.

One positive outcome of the court case is that the document, originally claimed to have been lost, was found during the Government’s preparation for the matter.

Maurice Blackburn is representing Mr Patrick, with support from advocacy partner Grata Fund.

Quotes attributable to transparency campaigner Rex Patrick:

“This decision means governments can no longer sweep a departing minister’s dirt underneath the carpet. It’s a win for all Australians who want to see greater transparency and accountability restored to our political system.

"I’m disappointed that the Attorney-General fought me on this and spent close to $200K of taxpayer’s money doing so.

“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.”

Quotes attributable to Jacinta Lewin, Principal Lawyer, Maurice Blackburn Lawyers:

“This case is a win for democracy and open government.  This decision makes it clear that a change of minister portfolio cannot be used to stifle transparency and accountability. It closes a loophole in the law – access to information cannot be scuttled by a change in jobs.  The decision returns some integrity to the FOI scheme. A screen that encouraged secrecy and reduced government accountability has been lifted."

Quotes attributable to Isabelle Reinecke, Executive Director, Grata Fund:

“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. We welcome the court’s decision which will improve transparency in Australian politics, given ministerial reshuffles are increasingly common.”

Background to the case:

In this case, the documents sought are letters sent by the then attorney-general Christian Porter to then prime minister Scott Morrison containing advice about the grant program which was the subject of the controversial “sports rorts” affair.

Mr Patrick’s FOI request was first made in 2020 to Mr Porter as attorney-general, who refused access to the documents.

Mr Patrick asked the Information Commissioner to review the refusal, but this review was not finalised before Michaelia Cash replaced Mr Porter as attorney-general in 2021, and Mark Dreyfus replaced Ms Cash as attorney-general in 2022.

In 2023, the Information Commissioner decided the documents in question were no longer in the possession of the attorney-general, and therefore not subject to release under FOI.

Mr Patrick took the case to the Federal Court, where it was heard by Justice Charlesworth in June 2023.

Media enquiries:
Chee Chee Leung, Maurice Blackburn, 0412 560 584 or cleung@mauriceblackburn.com.au
Susie Gemmell at Grata Fund on 0435 862 444 or susie@gratafund.org.au