Falk Lines: The Information Commissioner is fighting for the right to withhold information indefinitely, what?

Information Commissioner Angelene Falk will argue in Federal Court that it can take forever to process access to information complaints. patrick rexwho brought the case, reports that it is acting against the government’s transparency regime, the advice of Mark Dreyfus and the public interest.

For people to make valid judgments about government policy or intelligently contribute to new policies, they must be able to exercise their rights to timely access to government information.

It is therefore with great disappointment that at 10:15 a.m. this morning, the Information Commissioner (IC), Angelene Falk, will argue before the Federal Court that, when asked to review the decision access to information government that denies a person access to information, it may take forever to do so, thereby indefinitely denying that person’s right to fully engage in our democracy.

The IC’s decision to ask its taxpayer-funded attorneys to do so is a betrayal and a disgrace. It’s also a particularly odd move as the Attorney General has already intervened in the case explaining the adverse effects of his delay in ruling on the FOI regime.

Spending public money in secrecy

Last month, Senator Murray Watt informed Senator Jacqui Lambie that the IC, which is known to be under-resourced, has spent a whopping $301,667.12 on this. Norton Rose Fulbright Australia, who are representing the IC in the proceedings, initially estimated their costs would be $160,000, but hey, they’re now in the gravy and will likely end up billing the taxpayer over half a million.

A little over a year ago, I filed in Federal Court seeking legal relief from 22 IC reviews where the Commissioner failed to make a decision in a timely manner. .

These FOI applications addressed a wide range of issues; progress reports from the Future Submarine project (the project has now been cancelled); oil and gas processing options for Greater Sunrise oil and gas resources in the Timor Sea (an issue that erupted in the news a few weeks ago and one that will not go away); the ”Sports Rorts” Gaetjens Review (a report of interest in holding a former government to account) and the ministerial memoirs of the National Radioactive Waste Management Facility (the venue has now been decided, but there is court proceedings on foot), to name a few.

Despite the efforts of the Attorney General

At the start of the proceedings, which are being led by Victorian barrister Tiphanie Acreman, on a pro bono basis, and for which the Australia Institute and the Matilda Legal Fund are providing costs compensation, former Attorney General Mark Dreyfus stepped in to plead in favor of my cause.

Statement in support of Mark Dreyfus

Much of the $300,000 spent on legal fees so far has gone into preparing an argument that the reason the IC can’t process FOI reviews in a timely manner is that it lacks resources. In a recent IC letter to the Attorney General, published under FOI, she pleaded with the government to give her more resources.

However, in a last-minute request to the court, the IC decided to argue that it had no obligation to make a review decision within a reasonable time. Her official position, put in writing in court, is that she can sit on a decision forever!

The IC says it does because my application to the court asks it to intervene on the grounds that it failed to fulfill its duty to make a decision within a reasonable time, but it now argues that because a decision is made after CI review, the court cannot enforce its obligation to make a decision within a reasonable time until it completes its review.

This is to say that the time it takes to complete a race at Bathurst does not include the time it takes to complete 161 laps, only the time it takes for the checkered flag to fall.

Tarnish the office of the Australian Information Commissioner

It’s a nice legal argument that should be overcome by my little legal team. But it’s also a shameful argument that will tarnish her office’s sense of reasonableness for the remainder of her time serving in the role.

There is a difference between ”fair” and ”legal”. We have seen this demonstrated recently with the former prime minister secretly appointing himself to several ministries. Technically legal, but absolutely wrong!

The IC knows that its own argument goes against the objects of the freedom of information law which it is supposed to defend, support and implement. She probably betrays her own judgment, but she certainly betrays her own cause. She has an hour or two to fix her mistake.

In the meantime, the Attorney General must surely be red-faced. He allowed hundreds of thousands of taxpayer dollars to be spent on a case in which he formally opposed his own department.

‘Be honest for once’: Cost of secret trials rises as government covers up Timor spying fiasco

patrick rex

Rex Patrick is a former senator from South Australia and earlier a submariner in the armed forces. Best known as an anti-corruption and transparency advocate – www.transparencywarrior.com.au.