Court challenge over FOI ministerial reshuffles loophole continues with appeal hearing

14 Aug 2024

Former South Australian senator Rex Patrick has been fighting since 2020 for access to documents regarding the lawfulness of grants provided in the “sports rorts” scandal.

In March 2024, Mr Patrick won in a court challenge of the use of ministerial reshuffles as a reason to deny his FOI request.

Mr Patrick’s Federal Court win meant that government ministers would need to preserve documents subject to FOI requests – even if there was a ministerial reshuffle or change of government.

In April, the federal Attorney-General filed an appeal to this decision, which is being heard in the Full Court of the Federal Court of Australia in Adelaide.

A successful outcome for the government’s appeal would roll back the protection given to documents subject to FOI claims, meaning politically damaging documents may be lost to the FOI scheme following a cabinet reshuffle or election.

Maurice Blackburn and counsel Brendan Lim and Amanda Sapienza are representing Mr Patrick, with support from advocacy partner Grata Fund as part of its FOI Project and FOI Litigation Hitlist.

Quotes attributable to transparency campaigner Rex Patrick:

“All official documents are national resources; they belong to the people of Australia, who have a right to access them in accordance with the FOI Act to allow them to participate in government or to scrutinise it. I am arguing that this access right should not be extinguished by a cabinet shuffle or a change of government. That would allow ministers to sweep their dirt under the carpet as they leave office.

“The idea that a citizen’s right to access government is dependent on a political cycle, such as a prime minister’s reshuffling of cabinet or the calling of an election, is not consistent with the objectives of our FOI regime. That’s particularly the case when access appeals to the Information Commissioner can take three to four years.”

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

“The Federal Court decision in Rex Patrick’s case was an important win for democracy. The decision closed a loophole in the law that was being used to stifle government transparency and accountability. In this appeal, we will continue to make the case that a change of government minister is not a valid legal excuse to avoid public scrutiny.”

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

“The practice of documents disappearing as a matter of convention drew a sharp warning from Justice Charlesworth in her decision and should alarm everyone in the community. Destruction of public documents or the legal loophole that says ‘documents cease to exist’ when there is a change of minister through a cabinet reshuffle or an election is an affront to democracy. Not only that, it has significant implications for the continuity of government and good public governance.” 

Background to the case:

In this case, the documents sought by Mr Patrick under FOI were 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.

On 21 March 2024 Justice Charlesworth handed down judgement in Mr Patrick’s favour.

On 15 April 2024 the Attorney-General filed an appeal of the decision to the Full Court of the Federal Court of Australia (the notice of appeal was amended by orders dated 31 July 2024). 

Hearing details:

10.15am (Adelaide time), Friday 16 August, Federal Court of Australia, 3 Angas Street, Adelaide.

A video link to the hearing may be available on request to the court

Media enquires:
Chee Chee Leung, Maurice Blackburn, 0412 560 584 or cleung@mauriceblackburn.com.au
Belinda Lowe, Grata Fund, 0428 805 696 or belinda@gratafund.org.au