Rex Patrick’s FOI Case Part of Broader Case for Urgent FOI Reform

Australia Institute

Key details:

  • Rex Patrick’s appeal against the decision in Rex Patrick v Australian Information Commissioner (No 2) regarding the unreasonableness of delays in FOI reviews is being heard today
  • 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
  • The Australia Institute, Matilda Legal and the Grata Fund are supporting Patrick’s appeal
  • Australia Institute research finds that lengthy delays have undermined confidence in Australia’s freedom of information system and the South Australian FOI review system proves a better system is possible. At the time these papers were written:
    • The Commonwealth FOI review process had a backlog of 967 reviews that have been outstanding since 2021 or earlier, including 34 from 2018
    • In 2022, the FOI system cost $2,551 per FOI request determined, more than twice the $730 per FOI request determined in 2007, even after adjusting for inflation
    • When a Minister leaves office, their documents are often destroyed or otherwise no longer be accessible by FOI – even though the FOI request may have been made months or years earlier
    • In December, a parliamentary committee found that “the Commonwealth Freedom of Information (FOI) system is not working effectively and for some time has not functioned as it was intended”

“The Australia Institute believes in open, accountable government, and is proud to support Rex Patrick’s attempt to address chronic delays in the FOI review process,” says Bill Browne, Director of the Australia Institute’s Democracy & Accountability Program.

“Whether Rex Patrick wins or loses his appeal, Australia’s FOI system needs urgent and substantial reform to give citizens the information they are entitled to and shine a light on government decision-making.

“The Albanese Government promised greater transparency and accountability, but that will not happen while the freedom of information system remains skewed towards delay, denial and obfuscation.

“Starving the FOI system of resources appears to be a deliberate strategy to shield the government from scrutiny.

“FOI reviews must be conducted promptly, or public servants and ministers will escape scrutiny for denying the public access to information that they are entitled to.

“Democracy depends on a feedback loop, with an informed public judging their elected representatives on their record. If the public is kept in the dark, they cannot cast informed votes.”

Rex Patrick expressed his concern that the original jurisdiction of the Federal Court let the Government off the hook by finding significant delays caused by the Government underfunding the Information Commissioner meant that the delays weren’t unreasonable. “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.

“I have no choice but to pursue this matter in the Full Court. Despite its claims to fully support accountability, the Government has been unwilling to properly fund the Federal FOI regime. It appears that ‘transparency’ is a word only shouted from opposition benches.”

/Public Release. View in full here.