After losing an FOI case, the Department of Industry appealed to Federal Court, seeking to recover costs from a private citizen. A highly unusual move, with cross-bench politicians joining in the protest, Kim Wingerei reports.
It’s not often you see Senators Pauline Hanson, David Shoebridge, Lidia Thorpe, and Ralph Babet join forces on an issue, but they are among the 18 Parliamentarians who have written to Attorney-General Michelle Rowland with their concerns on the Labor Government’s heavy-handed tactics to fight transparency.
In May, the Administrative Review Tribunal overturned a government access refusal decision, rebuking the Government for its secrecy around AUKUS nuclear waste. The Freedom of Information request was by our very own transparency warrior, Rex Patrick – a private citizen.
The Secretary of the Department of Industry has now decided to appeal the decision to the Federal Court, also asking Rex to pay their legal fees, which can be up to $150,000.
In effect, such a move would cause citizens to stop at an FOI loss and
make it unfeasible to challenge dodgy decisions.
Which is why Shoebridge, Hanson, Babet, Thorpe et al has written to the Attorney-General, asking her to intervene:
“It has long been accepted that the Government, with its considerable resources, must be fair to its citizens. Dragging an ordinary citizen, self-represented and under threat of costs, to argue questions of law raised by the Government is most unfair.
“It also places the Court in the position of having to determine matters of law where the only legal professionals involved are those arguing the Government’s position. Indeed, it is highly foreseeable that Mr Patrick would only make a submitting appearance and leave the Court with no contradictor, which does not automatically remove his liability for costs.
“The ‘scales of justice’ would clearly be weighed down in favour of the Government and we believe that is not a recipe for good development of public law”
They also reminded the Attorney-General of the Prime Minister’s 2019 commitment to Government Transparency:
“In 2019 Anthony Albanese, then the opposition leader, delivered a landmark ‘Labor and Democracy’ speech in which he strongly advocated for Freedom of information and government integrity. He criticised existing laws at the time, arguing that ‘The current delays, obstacles, costs and exemptions make it easier for the government to hide information from the public. That is just not right’”.
“The Secretary’s attempt to impose costs in Mr Patrick’s matter seems entirely at odds with the Prime Minister’s stated values, particularly noting it is legal action launched by the Commonwealth.”
Civil society support
A collection of civil society organisations, including the Human Rights Law Centre, the Alliance for Journalists’ Freedom and Transparency International, have also weighed in in a separate letter.
“This precedent concerns us deeply. The FOI Act states clearly that access to government information should be provided at the lowest reasonable cost. The costs exposure now facing Mr Patrick is neither low nor reasonable. We note earlier this year, the Government’s proposed FOI amendments were not passed by Parliament, following significant concern from civil society.”
They pleaded with the Attorney-General, “We urge you to intervene: to direct that the Commonwealth meet Mr Patrick’s (and any future successful FOI applicant’s) reasonable legal costs on a Government-initiated appeal, and that it
does not seek a costs order against him should the Government’s appeal succeed.
Making transparency too costly
Rex Patrick told MWM, “Transparency shouldn’t depend on whether you’ve got a lawyer and hundreds of thousands of dollars. Any government committed to open democracy doesn’t
price people out of participation in democracy or scrutiny of government.
“The fact the Auditor-General found that more than half of challenged FOI decisions end with more information being released tells you that the government is already getting it wrong far too often. This latest threat is nothing more than a back-door way to undermine Australia’s already broken FOI system and ensure the government can continue to choose secrecy over accountability.”
Patrick believes it will cause people to stop at an FOI loss. Nobody can afford to risk $150K just to see a document, “I hope the Attorney-General intervenes. It’s in the public interest for her to do so.”
MWM has asked the Attorney-General’s office for comments.