The government will insist Rex Patrick pays up to $150,000 to cover its legal costs if he loses a fight to access documents about the Aukus agreement, escalating a battle in which several crossbench MPs have swung behind the former senator.
Patrick, a transparency campaigner, used freedom of information laws to seek details on where nuclear waste from the submarine fleet will be stored, and won an administrative appeal in May. But the Department of Industry, Science and Resources has appealed the matter to the federal court, seeking the decision be overturned and an order for Patrick to pay the government’s legal costs if he loses.
Crossbench MPs Lash Decision
Politicians including Jacqui Lambie and Pauline Hanson have lashed the decision, warning it is a breach of rules requiring the government to act as a model litigant. They, along with unions and transparency groups, have made appeals to the attorney general, Michelle Rowland, but have been rebuffed.
According to documents seen by Guardian Australia, Rowland last week said the government could rightly insist on Patrick being required to pay costs if he loses, acting “firmly and properly” to protect its interests. Rowland wrote to a group of crossbenchers – including independents Helen Haines, David Pocock and the Greens’ David Shoebridge – saying the industry department was responsible for conduct of the case. The department does not accept the model litigant rules prevent it from seeking costs from Patrick. Previous legal fights have seen fees of much as $150,000.
Lambie said: “The government is sending a very clear message to people: stop when we say you can’t have information under FoI, or we’ll take you to court and you could lose all your savings … and maybe your house.”
“I cannot believe the attorney general has handballed what is a whole-of-government principle issue to the secretary of a single department. The attorney is behaving like a Labor stooge, and either doesn’t have any leadership within her or doesn’t care. So which one is it?” she said. “This issue is not going to just go away.”
Transparency Groups Warn of Chilling Effect
Organisations including the Media Entertainment & Arts Alliance, the Grata Fund, the Alliance for Journalists’ Freedom and Australian Democracy Network have all called on the government to stop the legal challenge.
Tosca Lloyd, a Whistleblower Justice Fund campaigner, said the risk of a six-figure legal bill would limit ordinary use of FoI rules. “This chilling effect is neither hypothetical nor unintentional,” she said. “Public interest journalism depends on the FoI system. Investigative reporters – especially those at smaller and independent outlets – use it constantly to uncover stories the public has a right to know. If the cost of challenging a bad government decision is federal court litigation, most newsrooms simply won’t take that risk. The stories then won’t get told. That’s a loss for all of us.”
Bill Browne, the Australia Institute’s Democracy & Accountability program director, said departments and ministers should not fight FoI applicants. “The Albanese government already tried to restrict Australians’ right to access government information, and was rebuffed by the Senate. This looks like another attempt to raise the cost of scrutinising the government.”
Patrick Cites Legal Precedent
Patrick said legal precedent dating back to a 1912 high court decision showed a “standard of fair play” should be observed by governments. “I have some experience in courtrooms and have asked the court to ensure fairness from government and that these laws will be decided with competent barristers arguing different sides of the secrecy/transparency questions before it,” he said. “I can just hope that the courts will address the misguided sense of fairness and proper process exhibited by the attorney general.”
A spokesperson for Rowland declined to comment, referring questions to the department.
