Today, former Senator and transparency advocate Rex Patrick’s appeal over a judicial ruling - that the Information Commissioner's multi-year delays in reviewing FOI document access refusal decisions are legally reasonable - is to be heard by the Full Federal Court.

9:30am - Outside the Federal Court, Melbourne - interview/photo op with Rex Patrick 
10:15am - Hearing commences

Last year, the Federal Court recognised that delays in the Information Commissioner reviewing seven FOI matters — in some cases almost three years — were very significant. But it ultimately determined that the delays were not legally unreasonable due to under-resourcing of the Office of the Australian Information Commissioner (OAIC).

Rex Patrick has appealed the decision. Today, his barristers will argue to a Full Bench of the Federal Court that it can’t be correct that a right-of-access to government information given to him by the Parliament can be negatived or set a nought, or rendered ineffective or significantly undermined, because the executive Government doesn’t provide the Information Commissioner with the necessary resources to make the rights effective.

Rex Patrick said: 

“In 1982 the Parliament granted every Australian the right to access Government information to allow them to participate in our democracy, and to hold the Government to account. It can’t be that a government-of-the-day can take away that right by starving the funding of the agency that delivers those rights.  That can only happen if the government can convince the Parliament to repeal the right. Parliament is directly responsible to the public and is, therefore, supreme.”

“I have no choice but to pursue this matter in the Court. Despite its claims to fully support accountability, the Government has been unwilling to properly fund the Federal FOI regime.” 

“The consequence of the original judge’s ruling is that, provided there is a lack of sufficient resources, a government body may be excused from discharging its statutory function.”

“It appears that ‘transparency’ is a word only shouted from opposition benches.”

“A win will have far reaching implications for the public’s right to access Government information in a timely manner and the operation of our responsible system of Government. The principles involved could also have broad ranging implications for preserving other public rights”, said Rex Patrick.

The case is supported by Grata Fund as an advocacy partner, The Australia Institute and Matilda Legal. Mr Patrick is represented by Estrin Saul Lawyers and barristers Stephen McDonald SC and Tiphanie Acreman.

Isabelle Reinecke, Executive Director, Grata Fund said:

“It’s unacceptable for governments to continue to under-resource a key transparency institution like  the Office of the Australian Information Commissioner to the point that it cannot do its job effectively. This is an alarming breach of the separation of powers, but the government can fix it. The government has a choice; increase funding directly so the OAIC can properly do its job, or go back to Parliament and ask the Australian people whether they are happy for the government to continue to neuter this key transparency institution.

“Australia’s FOI system remains critically broken under an Albanese Government. The transparency system is plagued by excessive delays, effectively enabling government bodies to avoid scrutiny and blocking healthy participation when it counts. This appeal challenges a critical roadblock in the FOI system, identified by Grata Fund in our FOI Litigation Hit List released in 2021,” said Isabelle Reinecke.

Available for interview:

● Rex Patrick, Director, Transparency Warrior

● Isabelle Reinecke, Executive Director, Grata Fund

Additional:

• For more information about the original Federal Court decision that has been appealed, please see the online court file that was established by the Court. There is no online court file available for the appeal at this stage.

• See Grata Fund's FOI Litigation Hit List: challenging government secrecy in the courts which identifies litigation pathways to ensure FOI compliance by Government.

Media contact:  Susie Gemmell - [email protected]