In a decision handed down on Wednesday (25 September), the Full Federal Court upheld a decision, made in favour of former senator Rex Patrick, which found that documents subject to freedom of information (FOI) claims cannot cease to exist after a change of minister, such as through a cabinet reshuffle or an election.

That March 2024 decision in Patrick’s favour had overturned a previous decision of the Information Commissioner, which held that when a government minister resigns or leaves office, documents they take with them are no longer official documents that must be disclosed under FOI law.

The Full Court’s dismissal of the appeal, national plaintiff firm Maurice Blackburn said in a statement, means “the original win for transparency stands”.

The case came about following a 2020 FOI request from then-senator Patrick for documents containing advice sent by former A-G Christian Porter to former prime minister Scott Morrison pertaining to the so-called ‘sports rorts’ affair.

The documents sought under Patrick’s FOI application were refused by then-A-G Porter, claiming exemptions under the Freedom of Information Act. Patrick then sought a review of that decision by the Information Commissioner, which took close to three years. In that time, Porter was replaced as A-G by senator Michaelia Cash in March 2021 and then Dreyfus following the May 2022 election.

By February 2023, the Information Commissioner determined that the documents being sought were no longer in possession of the minister and thus not subject to release under the FOI Act.

Patrick was represented by Maurice Blackburn, which instructed Brendan Lim and Amanda Sapienza of counsel. Not-for-profit legal funder Grata Fund also supported the proceedings.

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In the judgment from March, Justice Natalie Charlesworth found that whether a document is an official document of a minister is to be assessed by reference to the facts and circumstances in existence at the time an FOI request is lodged, not some later review date after which the minister may have changed.

Justice Charlesworth wrote: “The new occupant of the office of Minister has the same obligations as the former occupant, and may demand from the former occupant the transfer of the custody of the document to the extent necessary to fulfil those obligations.”

In Wednesday’s judgment, while Justices Darryl Rangiah, Mark Moshinsky, and Wendy Abraham disagreed with the proposition that a document from a preceding minister cannot be in a succeeding minister’s possession and therefore would not be subject to release, Her Honour’s findings were “too prescriptive” and went “beyond what is necessary for the provisions of the Act to operate”.

“In particular, there does not appear to be a sufficient statutory foothold for the proposition that the Minister responsible for dealing with a request for access must maintain possession of the document until the request is finally determined,” Justices Rangiah, Moshinsky, and Abraham wrote.

“There does not appear to be a sufficient statutory foundation for the proposition that, pursuant to the FOI Act, a new Minister may demand from a former Minister that he or she transfer custody of a document that is the subject of an unresolved request for access.

“Given the complications that may arise in relation to Cabinet documents where there is a change in government, it may be that there are other ways of dealing with such a situation that preserve the applicant’s rights under the Act.”

Speaking following the judgment, Patrick said: “This win has reinforced the closure of a significant gap in accountability for acts of any sitting government. The decision will enable all Australians, and journalists, to better hold the government to account and ensure ministers’ actions, including scandals, cannot be buried by departing or changing office.

“Ministerial reshuffles are increasingly common in contemporary Australian politics, particularly after corruption scandals. The absurd consequence that a minister can escape scrutiny and shield information from being released under FOI laws simply by resigning or being shuffled around to a new position has been found unlawful twice now by the courts.

“An answer provided to a question asked of the Attorney-General by Senator Jacqui Lambie reveals that the Government has wasted more than $298,000 in taxpayers’ money unsuccessfully fighting to keep the secrecy loophole open. A further takeaway from these proceedings is that transparency is so much cheaper than secrecy.”

Maurice Blackburn senior associate Bridie Murphy (pictured) said: “This outcome is a win for democracy and open government. The court has made it very clear that a change of minister portfolio cannot be used to stifle transparency and accountability. Closing this legal loophole returns integrity to the FOI scheme.

“The public has the right to scrutinise the actions of the government. This decision reinforces the need for public officials to act with integrity. Their decisions and actions should not be hidden from the public by our laws.”

And Isabelle Reinecke, the founder and executive director of Grata Fund, said: “This decision should send yet another warning bell off across parliamentary offices.

“We are serious about holding governments of any stripe accountable to the law and we will ensure the public can scrutinise the actions of the governments elected to serve us.

“It’s been almost five years since former attorney-general Porter provided advice about the so-called ‘sports rorts’ affair to former prime minister Morrison. The fact that this legal battle has dragged on for so long and that both major parties have attempted to maintain secrecy should concern all of us. This information no longer has the public accountability function that it would have if it was released promptly. Whether or not political parties like it, public accountability is critical to democracy and we will continue to push for accountability.”