On Friday 26 May at 2.15pm, the Federal Court in Melbourne handed down its decision on the Rex Patrick v Australian Information Commissioner (OAIC) case, the long-awaited challenge to the lengthy delays that plague freedom of information (FOI) requests.
The Court has held that the Information Commissioner has a duty to make a decision once they receive an application, rather than after their investigation is completed which often takes years.
The Federal Court put responsibility squarely on the government’s shoulders, finding that there had been ‘very significant delays’ due to an ‘unquestionable shortage of resources’ for the Information Commissioner – but held that it is a decision for the Government and Parliament to provide the funding in order to ‘enable the discharge of the Commissioner’s statutory functions’.
Rex Patrick says
“I am naturally disappointed in the outcome”.
“The Court recognised, on the submissions and evidence, that the FOI system is completely broken, but says that the fix must come from the Parliament, not the Court. The Parliament must sit up and take notice of the Court.”
“The Court found that there were ‘very significant’ delays in the processing of my Information Commissioner reviews, but that those delays were not ‘legally unreasonable’ because the Office of the Australian Information Commissioner is completely overwhelmed with applications and lacks the resources to deal with them.”
“The decision is bad news for any person wanting to obtain timely access to information to allow them to participate in policy debates or scrutinise government. Conversely, it’s great news for ministers and officials who want to bury information in an IC review for anything up to five years, knowing that when the review is finalised the results will be of historical use only.”
The OAIC released this Statement on Federal Court judgement:
26 May 2023 – The Federal Court today handed down its decision in Patrick v Australian Information Commissioner.
The Federal Court found the applicant is not entitled to relief in relation to the question before the Court.
The Information Commissioner will consider the decision more fully and confer with Mr Patrick regarding the appropriate orders to give effect to the Court’s reasons.
See also: Centre For Public Integrity investigation into Freedom of Information (FOI) in Australia.
This case brought by former Senator Rex Patrick goes to the heart of how the Australian FOI system works and has far-reaching implications for the rights of journalists, civil society organisations and the wider public to access government information, hold leaders and decision-makers to account, and understand what is being done in their name.
The OAIC’s lengthy delays in processing FOI appeals has had some people waiting up to five years for a decision.
These delays have long been criticised by advocacy groups, journalists and even by a former Freedom of Information Commissioner, Leo Hardiman PSM KC.
In March this year, Mr Hardiman quit after less than a year in the job, because of his lack of power to fix these lengthy delays.
In March the Greens, Coalition and crossbench teamed up to force a Senate Inquiry into the FOI system, tasked with looking at the reasons behind Mr Hardiman’s resignation, delays in processing appeals and timeframes and other matters that have long plagued the FOI regime.
Ensuring that people can access government information in a timely manner through the FOI system is an essential part of a healthy democracy, but in Australia, the FOI system is broken.
At the federal level, government bodies routinely reject FOI requests on spurious grounds and FOI administration is plagued by excessive delays at every stage.
These delays effectively enable government bodies to shield their activities from scrutiny, particularly as the newsworthiness and value of information is often reduced over time.
Grata Fund is an advocacy partner supporting this case. Isabelle Reinecke, Executive Director, Grata Fund says: ”Today’s decision should be an enormous catalyst for the government to improve and future-proof the FOI system by funding the OAIC adequately to remove the years long delays. By anyone’s measure, multiple year delays are unacceptable, and now the ball is in the government’s court to ensure its public commitments to the democratic operation of government are put into effect.”
This case is supported by advocacy partner Grata Fund as part of its litigation hit list, a project which has supported three FOI cases targeting the major roadblocks to the lawful functionality of the FOI system. Two of these cases have been with Mr Patrick.
Key Facts:
On Friday 26 May at 2.15pm, the Federal Court in Melbourne handed down its decision on the Rex Patrick v Australian Information Commissioner (OAIC) case, the long-awaited challenge to the lengthy delays that plague freedom of information (FOI) requests.
Grata Fund is Australia’s first specialist non-profit strategic litigation incubator and funder. Grata develops, funds, and builds sophisticated campaign architecture around high impact, strategic litigation brought by people and communities in Australia. We focus on communities, cases and campaigns that have the potential to break systemic gridlocks across human rights, climate action and democratic freedoms.
Cropped video still of independent Australian Senator Rex Patrick addressing a protest related to Witness K and Bernard Collaery in front of Parliament House, Canberra, on 18th June 2021. CC BY 3.0
