Full Federal Court upholds FOI ruling that ministerial reshuffles cannot result in documents being hidden

26 Sep 2024

In the decision handed down late on Wednesday 25 September, the Full Federal Court upheld former senator Rex Patrick’s landmark court win, which found that documents subject to FOI claims cannot cease to exist after a change of minister, such as through a cabinet reshuffle or an election.

Mr Patrick’s original Federal Court win overturned the previous decision of the Information Commissioner that found that when a government minister resigns or leaves office, documents they take with them are no longer official documents that must be disclosed under FOI law. The Full Court’s dismissal of the appeal means the original win for transparency stands.

Mr Patrick is now a step closer to accessing advice prepared by former attorney-general Christian Porter for former prime minister Scott Morrison about the controversial ‘sports rorts’ affair.

This is the second Federal Court FOI case being brought by Mr Patrick, and the third piece of litigation supported by advocacy partner Grata Fund as part of its FOI Project, which identifies yet another major roadblock to a functional FOI system - a system that is key to the accountability of government and the public service.

Mr Patrick was represented by Maurice Blackburn instructing Brendan Lim and Amanda Sapienza of counsel.

Quotes attributable to Bridie Murphy, Senior Associate, Maurice Blackburn:

“This outcome is a win for democracy and open government.  The court has made it very clear that a change of minister portfolio cannot be used to stifle transparency and accountability. Closing this legal loophole returns integrity to the FOI scheme.

“The public has the right to scrutinise the actions of the government. This decision reinforces the need for public officials to act with integrity. Their decisions and actions should not be hidden from the public by our laws.”

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

“This decision should send yet another warning bell off across parliamentary offices. We are serious about holding governments of any stripe accountable to the law and we will ensure the public can scrutinise the actions of the governments elected to serve us.

“It’s been almost five years since former attorney-general Porter provided advice about the so-called ‘sports rorts’ affair to former prime minister Morrison. The fact that this legal battle has dragged on for so long and that both major parties have attempted to maintain secrecy should concern all of us. This information no longer has the public accountability function that it would have if it was released promptly. Whether or not political parties like it, public accountability is critical to democracy and we will continue to push for accountability.” 

BACKGROUND TO THE FOI REQUEST

In 2020, then Senator Rex Patrick made an FOI application to the Attorney-General’s Department for documents sent by then Attorney-General Christian Porter to the prime minister containing advice relating to the Community Sport Infrastructure Grant Program. This grant program was the subject of the “sports rorts” affair, which was exposed when the Australian National Audit Office reported that then minister Bridget McKenzie allocated grants to marginal or targeted electorates against recommendations made by Sport Australia.

In response to Senator Patrick’s FOI application, then Attorney-General Mr Porter identified the document but refused access, claiming exemptions under the FOI Act.

On 4 June 2020, Senator Patrick applied to the Information Commissioner for a review of the refusal decision. Senator Patrick’s review application sat with the Information Commissioner for almost three years, waiting for determination. During this time, Mr Porter resigned as attorney-general and was replaced by Senator Michaelia Cash in March 2021, before Mark Dreyfus KC was appointed after the May 2022 election. The Information Commissioner never used her powers to call for the document before Mr Porter had resigned. The new attorneys-general and their departments told the Information Commissioner that they could not locate the ‘sports rorts’ advice document.

On 28 February 2023, the Information Commissioner issued a decision concluding that the ‘sports rorts’ advice was no longer in the possession of the minister and therefore not subject to release under the FOI Act. She chose not to exercise her information-gathering powers to contact Mr Porter or any other individuals who might have a copy of the document. This approach essentially allowed a former attorney-general to bury a politically sensitive document from the public, and prevented documents related to a political controversy from being released under FOI laws.

Mr Patrick appealed to the Federal Court. In March 2024  Mr Patrick won his case.  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 Commonwealth’s appeal of this decision was heard before the Full Federal Court in Adelaide this August with the decision issued on Wednesday 25 September. 

Media enquires:
Chee Chee Leung, Maurice Blackburn, 0412 560 584 or cleung@mauriceblackburn.com.au
Madeleine Burkitt, Grata, 0435 045 516 or maddie@gratafund.org.au