Senator Seeks to Make Government Pay Legal Costs When It Appeals FOI Wins

Senator Jacqui Lambie reacts as she speaks in the Australian Senate at Parliament House in Canberra, Australia on September 3, 2020 . Photo by David Gray/Getty Images

Senator Jacqui Lambie has introduced a bill that will force the federal government to cover the costs of legal appeals it makes against successful FOI requests.

The Tasmanian senator claimed the Labor government was using the threat of large legal bills to scare Australians away from making freedom of information (FOI) requests.

Under FOI laws, a person refused documents by a government department can ask the Information Commissioner or the Administrative Review Tribunal to examine the refusal.

If either rules in the person’s favour, the government can appeal to the Federal Court.

In Court, the losing side usually pays the winner’s legal costs. That means a person who has already won access to documents can be taken to court and, if the government succeeds, end up paying both their own lawyers and the government’s.

Lambie’s bill would change this only when the government is the one appealing.

In those cases, the government would have to pay the person’s reasonable legal costs, including any costs the court orders against them, whatever the result. It would also apply to appeals already under way that have not been finally decided.

In the first case, the Department of Industry, Science and Resources appealed after a tribunal ordered the release of a report on where nuclear waste from AUKUS submarines might be stored. The second appeal, by Treasury, concerns documents on how the Foreign Investment Review Board decides whether foreign purchases of Australian assets are in the national interest.

“Whilst I’m the first victim of the government’s new secrecy strategy, this is not about me. I’m big enough and ugly enough to look after myself,” Patrick said.

He said the tactic needed to end so that everyday Australians could use FOI to take part in democracy and scrutinise their government “without having to worry about losing their house.”

The dispute comes amid wider concerns about access to government information.

The report also found that the Albanese government was complying with fewer than one-third of Senate orders to produce documents, prompting calls for stronger parliamentary scrutiny and a more open disclosure culture.

Lambie Estimates $300,000 Bill

The memorandum explaining the bill says court cases are so technical that a person without legal training will almost certainly lose, so they need lawyers costing about $150,000, plus a similar sum in case they must cover the government’s costs.

“That’s a $300,000 bill to get access to information about what the government is doing,” the memorandum states.

Lambie said the bill was modelled on South Australia’s FOI law, which requires a state government agency that appeals a decision to the Ombudsman to pay the citizen’s reasonable costs.

“Australians are losing trust in government and politicians—behaviour like this isn’t helping. If the government wants the Australian people to trust them, they should stop this financial coercion now and support my bill.” Lambie said.

The Auditor-General’s May audit (pdf) of three federal departments—the Prime Minister and Cabinet, Treasury, and Infrastructure—found that only 54 percent of cases taken to the Information Commissioner for review saw information released after.

The government’s own changes to the information laws, which would have brought in application fees and longer response times, were dropped in March after failing to win support in the Senate.

On March 5, Finance Minister Katy Gallagher told the Senate the current system was “unworkable,” and that the government’s reforms would have made it more efficient for people genuinely seeking information.

We had a problem loading this article. Please enable javascript or use a different browser. If the issue persists, please visit our help center.

Source link