Federal Court rules ministers cannot hide behind reshuffles to deny FOI documents

Ministerial reshuffles cannot be used as an excuse to hide documents from public scrutiny, according to a Federal Court ruling.

The full Federal Court this week upheld a landmark court win by former senator Rex Patrick over Freedom of Information (FOI) requests.

In doing so, the court has dismissed Attorney-General Mark Dreyfus’ appeal aimed at reopening a loophole allowing ministers to avoid FOI requests as they leave office.

Legal advocates are describing the ruling as a significant win for transparency and accountability.

The court ruled documents subject to FOI claims could not cease to exist after a change of minister due to a cabinet reshuffle or election.

Mr Patrick’s original Federal Court win overturned the Information Commissioner’s previous decision that found documents taken by a government minister when they resigned or left office were no longer official documents that must be disclosed under FOI law.

Maurice Blackburn lawyers, who represented Mr Patrick, said the outcome was 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,” senior associate Bridie Murphy said.

“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.”

In 2020, then senator 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.

The grant program became the subject of the “sports rorts” affair, exposed when the Australian National Audit Office reported then minister Bridget McKenzie allocated grants to marginal or targeted electorates against Sport Australia’s recommendations.

In response to senator Patrick’s FOI application, 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. The application sat with the Information Commissioner for almost three years, waiting for determination.

Mr Porter resigned as attorney-general, replaced by Senator Michaelia Cash in March 2021 before Mr Dreyfus was appointed when Labor won the May 2022 election.

Both subsequent attorneys-general and their departments told the Information Commissioner they could not locate the ‘sports rorts’ advice document.

On 28 February 2023, the Information Commissioner issued a decision concluding the ‘sports rorts’ advice was no longer in possession of the minister and therefore not subject to release under the FOI Act.

Mr Patrick appealed to the Federal Court and won the case in March this year.

Justice Natalia Charlesworth said whether a document was an official document of a minister was to be assessed by reference to the facts and circumstances in existence at the time an FOI request was lodged – not some later review date after which the minister may have changed.

Justice Charlesworth also determined there was an implied obligation under the FOI Act, imposed on those who received FOI requests, to not frustrate access to a document or rights of review and appeal.

The Commonwealth appealed the decision but ultimately lost.

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

“This win has reinforced the closure of a significant gap in accountability for acts of any sitting government,” he said.

“The decision will enable all Australians, and journalists, to better hold the government to account and ensure ministers’ actions, including scandals, cannot be buried by departing or changing office.

“Ministerial reshuffles are increasingly common in contemporary Australian politics, particularly after corruption scandals.

“The absurd consequence that a minister can escape scrutiny and shield information from being released under FOI laws simply by resigning or being shuffled around to a new position has been found unlawful twice now by the courts.”

Mr Patrick’s advocacy partner Grata Fund said the decision should be a warning bell across parliamentary offices.

“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,” executive director Isabelle Reinecke said.

“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.”