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FOI Act ‘loophole’ buried sports rorts material, court hears

The potential for legal action against former attorney-general Christian Porter over a missing document in the sports rorts scandal has been flagged during a hearing into a “loophole” allegedly shielding parliamentary offices from freedom of information requests.

user iconNaomi Neilson 27 June 2023 Big Law
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The Federal Court of Australia heard on Monday (26 June) that government documents subjected to freedom of information (FOI) requests are being kept secretive due to the practice of ministerial reshuffles, including a document related to the sports rorts affair.

This document, which whereabouts still remain a mystery, was requested when Mr Porter was still in the Attorney-General’s office.

Maurice Blackburn counsel Stephen McDonald, representing former minister Rex Patrick in the legal challenge, told the court the FOI request was seeking communication between Mr Porter’s office and the office of then-prime minister Scott Morrison.

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These documents came off the back of revelations that MPs, including Senator Bridget McKenzie, were funnelling grant money into marginal and priority seats as part of distributional bias.

Mr Porter’s office identified one document that fit the bill but claimed it was subject to legal professional privilege and that it was a cabinet document, both of which were exemptions under the FOI Act.

Mr Patrick requested the information commissioner review the refusal but a decision had not been made by the time Michaelia Cash took over the Attorney-General’s office from Mr Porter in 2021. Ms Cash informed the commissioner she did not have the document.

“Governments should not be able to sweep a departing minister’s dirt underneath the carpet,” Mr Patrick said.

“I am asking the Federal Court to correct the information commissioner’s interpretation of the law and restore greater transparency to our political system.”

Earlier this year, the information commissioner decided the documents were no longer in possession of the Attorney-General, now Mark Dreyfus, and could no longer be released under the FOI Act.

“It seems the ministers did not feel there was a reasonable requirement to leave documents with a successor,” Mr McDonald said.

Mr McDonald added there was a “deliberate” practice that allows agencies and ministers to bring documents “outside of the regime of the act by moving them outside of the possession of the minister”.

“It is just impossible to think that is some sort of balancing of a competing public policy. It is a contradiction to the policy of the act,” he said.

Mr McDonald said that accepting Mr Porter acted in good faith, he “would have taken good steps” to ensure his successor had the document that was the subject of an FOI review.

“The most obvious way to deal with that, in this case, is put the document in a folder and put a sticky note on the front that says the document is the subject of a current FOI,” Mr McDonald told the court.

Mr McDonald suggested that if Mr Patrick is right and this practice does exist, then Mr Porter had a duty to preserve the document subjected to an FOI review but ultimately breached this.

“As an effect of the breach, Mr Dreyfus is entitled to it back,” he said.

Mr McDonald added there would then be a request to the former attorney-general for the return of the document and suggested it could happen by “suing Mr Porter, if it came to that”.

Counsel for the Attorney-General’s office said the FOI document would have become “commonwealth records”, and there is no entitlement to “take Mr Porter off to court” in order to access it.

Naomi Neilson

Naomi Neilson

Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly. 

You can email Naomi at: This email address is being protected from spambots. You need JavaScript enabled to view it.

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