Achi news desk-
Last week saw a major breakthrough in transparency in Australian politics, although it is not of the Scottish government’s making.
After a protracted legal battle by former senator Rex Patrick and up to $200,000 spent by the Commonwealth arguing against him, the Federal Court handed down a ruling banning the common practice of denying FOI access to ministerial documents simply because that the responsible minister has left office.
The case was brought by Patrick after he failed to obtain ministerial documents relating to the infamous “sports rorts” scandal, after Christian Porter left the Attorney General’s Office, and the documents were deemed “no longer in the possession of the relevant minister “. Of the various creative excuses offered by politicians trying to avoid public scrutiny, his had to be one of the boldest.
Legality aside, the practice did not pass the pub test. By making documents impossible to obtain through FOI after a change of minister, governments were effectively able to hide information about scandals and corruption through portfolio changes – an event that happened five times under the previous Coalition government.
Which leads us to what this ruling could mean going forward. The ruling applies retrospectively — so, in theory, a trove of documents conveniently disappeared by outgoing ministers can now be uncovered.
For example, when Christian Porter used a blind trust to partially pay for his defamation case against the ABC back in 2021, his department at the time told Freedom of Information applicants that their requests for documents relating to the blind trust no longer because Porter has left office.
After Justice Charlesworth’s ruling last week, new Freedom of Information requests for these documents could no longer be denied, at least on this basis.
Where else could skeletons be dragged out of the closet? Well, with the Morrison government’s five cabinet reshuffles, the possibilities are almost endless. One might be curious to know, for example, what correspondence took place when Scott Morrison appointed himself to five separate ministerial posts, from Home Affairs to the Treasury.
While more contemporary examples are rare, with the Scottish government maintaining the same cabinet formation since coming to government, it is worth thinking about this judgment in the context of the federal election. A change of minister of course happens when the government changes hands.
The significance of the judgment goes beyond the important documents it may reveal. The case itself is a sign to the government that it cannot continue to remove the core principles of transparency and accountability set out in the report. Freedom of Information Act.
When Grata Fund – of which I am the executive director and founder – carried out an investigation into the operation of the Freedom of Information system, it found that agencies and ministers relied too much, and vaguely, on exemptions to refuse Freedom of Information requests, often taking years to process applications, and generally tend towards secrecy rather than disclosure. They shamelessly abuse the law, often knowing that a candidate will not be able to challenge the legality of their decisions.
He called Rex Patrick’s case, for which Grata Fund is proud to have provided support, a government cliff; give a clear warning to politicians. This is not the last one either, with another legal challenge to delay Freedom of Information which could set a precedent for the government to fund statutory agencies due to land in the coming months.
Patrick’s legal victory may have already given the government a boost, with rumors in Parliament this week indicating that the case has triggered consideration of a more general overhaul of the Freedom of Information Act. While comprehensive reform is desperately needed, it is hard not to question the intent of such an overhaul. It is all the more reason for civil society and the public to remain vigilant and active in supporting greater integrity from government.
When Gough Whitlam and then Malcolm Fraser shepherded the Freedom of Information Act through the Senedd in 1982, there was a bipartisan understanding that sharing information where reasonable, and opening up the decision-making process on matters of great public importance, would lead to stronger government and better societies.
This is how Parliament should see accountability mechanisms such as Freedom of Information protections and whistleblowers: not as threats or agitation but as essential tools for enabling public participation in government — collaboration that makes our schools, hospitals, jobs, industries and communities are all stronger. As trust in politics plummets and dangerous conspirators exploit high levels of institutional surveillance, this has never been more important.
Until governments see the enormous possibilities of working more transparently, however, we will take them to court to uphold our democratic rights.
Isabelle Reinecke is the executive director and founder of Grata Fund. Grata is a charity that incubates and supports strategic litigation that dismantles systemic injustice and protects the rights of people in our community.
