Freedom of Information: Mark Dreyfus to overturn Coalition block on national cabinet documents, but host of requests may never be answered | Northern Beaches Review
A host of delayed and blocked access to information requests may never see the light of day if the government changes hands in a federal election.
Labor has revealed it will not follow the coalition in blocking access to national cabinet documents, but has signaled it may scrap meetings altogether.
The Coalition challenged this decision, barring access to information about national cabinet meetings, which are attended by Commonwealth and State and Territory representatives.
Shadow attorney general Mark Dreyfus confirmed that Labor would reverse that position if elected.
“As [ACT Chief Minister] Andrew Barr observed that “the national cabinet is coming to the end of its fairly limited lifespan”, he said.
“But the Labor Party’s position is that it has never been subject to cabinet confidentiality rules for freedom of information requests, and we would adhere to that in power.”
Independent Senator Rex Patrick, who has repeatedly criticized the Coalition for being “addicted to secrecy”, welcomed the Labor Party’s change of course.
But with requests pending to be sent to the National Archives if Labor wins, Senator Patrick warned that a number of requests will still fall through the cracks.
“Mark Dreyfus takes height here and took into account [the court ruling]. But that might not help people who have walking problems,” he said.
“Contrary to the law”
A potential change in government also has implications for a large backlog of freedom of information requests, exacerbated by what the Grata Fund has warned are “often illegal” uses of exemptions to block requests.
Under access to information rules, requests to specific ministers end when the minister leaves office.
There are around 40 such requests currently pending, and a spokesperson for Australia’s Information Commissioner’s Office insisted it was working as quickly as possible to resolve the backlog.
“We continue to prioritize issues that warrant shipment in accordance with our usual practice and to consider all relevant factors,” the spokesperson said.
Senator Patrick said he alone had five or six pending that would not be answered after a change of government, and wrote to the Information Commissioner to sound the alarm.
He also took the commissioner to Federal Court, arguing that the office is processing applications at a freezing pace.
“As many as 40 people potentially lose the ability to access information…are happening because the Information Commissioner is not conducting reviews in a timely manner,” he said.
“I believe she is operating against the law.”
The Coalition has come under fire for using the rule to deny requests for access to a letter from key sports reports, filed with former Attorney General Christian Porter before he resigned.
The document is believed to contain Mr Porter’s advice to Prime Minister Scott Morrison on whether then-sports minister Bridget McKenzie had the power to overrule Sports Australia’s recommendations when she allocated funds.
His replacement, Senator Michaelia Cash, declined to publish the letter because Mr Porter is no longer the minister.
Strategy not tested
ANU policy researcher Daniel Casey hopes an untested legal strategy could unlock answers.
A minister’s papers are transferred to the National Archives of Australia when they leave office, locking them up for 20 years.
But this exemption is subject to the documents being a gift from an individual: the Minister.
Since ministers are required to submit documents to the archives under the law, Mr Casey believes they cannot be considered a donation and are therefore still subject to freedom of information requests.
He argues that there is a legal distinction between a minister who voluntarily “places” a personal document – such as John Howard’s diary – and who is legally required to “transfer” one – such as a government operations letter.
“The minister has no agency and no choice. Therefore, it could not have been placed in the archives by the minister,” he said.
“The only things the minister has the option of ‘placing’ in the archives are his own personal material. Only such material is exempt from freedom of information requests.”