00:00:00
Speaker 1: Another interesting one to watch will be a court case that we have been following for some time here in South Australia between Rex Patrick and the state government. It all started with an FOI application that Rex Patrick put in. Rex Patrick will be able to confirm if this is an appropriate summation. He put in an FOI to get a certain document in.
00:00:20
Speaker 2: It was approved. The government appealed that. It was denied. Rex Patrick appealed it. It was approved.
00:00:26
Speaker 1: And now it's potentially going all the way to the High Court. Rex Patrick, former South Australian Senator, Freedom of Information warrior.
00:00:35
Speaker 2: Is that kind of the gist?
00:00:37
Speaker 3: Yeah, that's quite right. Good morning to all of your listeners. Yeah, so basically I've been trying to get access to information about that very secretive topic, which is the Murray-Darling Basin. That was essentially the documents that I was seeking access to. And there was some bouncing back as to whether or not I could or couldn't have that document. But earlier this year, the full court of the South Australian Supreme Court basically determined that I was entitled to that document. the government responded by making a special leave application to the High Court. So you can't just, by right, appeal to the High Court. You have to make your case as to why they should hear the appeal. In doing that, they also said to the court that they wanted me to pay their legal costs if the case went ahead. Now, the court has made a determination. They've said that the case can go ahead. But if it does, quite reasonably, and I think all your listeners will agree it's appropriate, that the deep-pocketed state will have to pay me, an ordinary citizen, they're going to have to pay my legal fees. One of the reasons for that is, firstly, it is unfair to take someone to the High Court when they're just trying to get access to scrutinised governments. but also if the state government weren't to pay my costs, we'd have a really crazy situation where I simply wouldn't turn up and we'd be having laws decided at the highest levels of our legal system without a contradictor presenting the other side of the argument. So the High Court has done absolutely the right thing. The Malinau government should have done this from the start. If they wanted to appeal, they should have simply said, We want to appeal and we will pay Mr. Patrick's cost because that's the reasonable thing to do. That's the fair thing to do.
00:02:42
Speaker 1: So surely now, Rex Patrick, if proceeding to the High Court means that taxpayers have to pay the government's legal costs and your legal costs all over an FOI that you have already been granted access to, surely this is where it ends. The state government isn't going to proceed with that.
00:03:01
Speaker 3: Well... I think they still will. There's a chance they won't, but they presented the case to the High Court saying this is really, really important. So it would be odd if they did not proceed now. And after all, for them, it's just taxpayers' money. It's taxpayers' money being used to keep information from the taxpayer. So, look, I think it will go ahead. And the reason it will go ahead is because And this is the thing that the government's really worried about, is that this FOI deals with parliamentary briefs, all the briefs that officials take to budget estimates, which contains lots of contemporary and detailed information about how government is working. What the Court of Appeal in South Australia said is, I'm entitled to see that, and every South Australian is entitled to see that. And that their big worry is, this is not really about the Murray-Darling, this is about general secrecy of government. They just absolutely fear the level of detail that would be available to South Australians about what's happening inside their government could become disclosed on a regular basis.
00:04:10
Speaker 4: That's an important detail, I think, Rex, that I think we should spend just a moment focusing on. So this was a brief prepared for someone who was going to be under questioning at budget estimates. So presumably all this could have come out. Because it was content for the purpose of answering questions. So it is not as though it is so secret it was some detail that was never designed to see the light of day. It was for the express purpose of having someone, a minister or a head of a department, briefed well enough to answer questions that may come their way. That's why I struggle to see the argument about keeping that secret.
00:04:46
Speaker 3: And that's exactly the point. And that was raised in the proceedings and all of the proceedings by saying these documents... were written to help people, to help officials and ministers answer questions in a public forum so that they were well informed to be able to perform their statutory duty of answering to the Parliament and ultimately to the people of South Australia. That's the really weird thing about this.
00:05:15
Speaker 4: Rex, thank you. Well, I think the High Court's made the right decision with regard to the legal fees because whilst No one's excited about taxpayers putting the bill for more stuff. If this is the kind of thing that is not funded by the state, you end up with a scenario where that avenue to justice or to get things clarified doesn't exist for normal people. Governments can forever escalate it to a court beyond the capacity for people to pay, which is not how we– I don't think anyone would like justice to be done in this country.
00:05:44
Speaker 1: No.
00:05:45
Speaker 2: We have a statement from the government on this.
00:05:48
Speaker 1: The Court of Appeals decision significantly departed from the previous understanding of how parliamentary privilege applied to documents prepared for use in Parliament.
00:05:59
Speaker 2: Okay, so that's the argument.
00:06:01
Speaker 1: Consideration by the High Court will put beyond doubt how the law operates in this area.
00:06:05
Speaker 2: We welcome the decision. As the matter's before the court, we can't comment further.
00:06:09
Speaker 1: So it sounds like they will proceed with this, which means you, listening right now, the taxpayer, will be paying whatever the government's legal fees are to attend the High Court and whatever.
00:06:17
Speaker 2: Rex Patrick's legal fees are, all because the.
00:06:20
Speaker 1: Government doesn't want you to have access to a document that was prepared by a public servant for you to get access to.
00:06:25
Speaker 2: LAUGHTER Make sense of that.
00:06:31
Speaker 3: Yeah.
00:06:32
Speaker 4: Well, let's hope we'll see what the High Court decides and then at least this will be done with.
00:06:40
Speaker 3: Yeah.
00:06:41
Speaker 4: I suspect in the event that they rule in favour of Rex Patrick, he'll get access to these documents and the way in which people are briefed for Senate estimates or estimates here locally will forever change and they'll find another way to keep it quiet. But anyway, it'll be interesting to see how this one does get played out.
Speaker 1: Another interesting one to watch will be a court case that we have been following for some time here in South Australia between Rex Patrick and the state government. It all started with an FOI application that Rex Patrick put in. Rex Patrick will be able to confirm if this is an appropriate summation. He put in an FOI to get a certain document in.
00:00:20
Speaker 2: It was approved. The government appealed that. It was denied. Rex Patrick appealed it. It was approved.
00:00:26
Speaker 1: And now it's potentially going all the way to the High Court. Rex Patrick, former South Australian Senator, Freedom of Information warrior.
00:00:35
Speaker 2: Is that kind of the gist?
00:00:37
Speaker 3: Yeah, that's quite right. Good morning to all of your listeners. Yeah, so basically I've been trying to get access to information about that very secretive topic, which is the Murray-Darling Basin. That was essentially the documents that I was seeking access to. And there was some bouncing back as to whether or not I could or couldn't have that document. But earlier this year, the full court of the South Australian Supreme Court basically determined that I was entitled to that document. the government responded by making a special leave application to the High Court. So you can't just, by right, appeal to the High Court. You have to make your case as to why they should hear the appeal. In doing that, they also said to the court that they wanted me to pay their legal costs if the case went ahead. Now, the court has made a determination. They've said that the case can go ahead. But if it does, quite reasonably, and I think all your listeners will agree it's appropriate, that the deep-pocketed state will have to pay me, an ordinary citizen, they're going to have to pay my legal fees. One of the reasons for that is, firstly, it is unfair to take someone to the High Court when they're just trying to get access to scrutinised governments. but also if the state government weren't to pay my costs, we'd have a really crazy situation where I simply wouldn't turn up and we'd be having laws decided at the highest levels of our legal system without a contradictor presenting the other side of the argument. So the High Court has done absolutely the right thing. The Malinau government should have done this from the start. If they wanted to appeal, they should have simply said, We want to appeal and we will pay Mr. Patrick's cost because that's the reasonable thing to do. That's the fair thing to do.
00:02:42
Speaker 1: So surely now, Rex Patrick, if proceeding to the High Court means that taxpayers have to pay the government's legal costs and your legal costs all over an FOI that you have already been granted access to, surely this is where it ends. The state government isn't going to proceed with that.
00:03:01
Speaker 3: Well... I think they still will. There's a chance they won't, but they presented the case to the High Court saying this is really, really important. So it would be odd if they did not proceed now. And after all, for them, it's just taxpayers' money. It's taxpayers' money being used to keep information from the taxpayer. So, look, I think it will go ahead. And the reason it will go ahead is because And this is the thing that the government's really worried about, is that this FOI deals with parliamentary briefs, all the briefs that officials take to budget estimates, which contains lots of contemporary and detailed information about how government is working. What the Court of Appeal in South Australia said is, I'm entitled to see that, and every South Australian is entitled to see that. And that their big worry is, this is not really about the Murray-Darling, this is about general secrecy of government. They just absolutely fear the level of detail that would be available to South Australians about what's happening inside their government could become disclosed on a regular basis.
00:04:10
Speaker 4: That's an important detail, I think, Rex, that I think we should spend just a moment focusing on. So this was a brief prepared for someone who was going to be under questioning at budget estimates. So presumably all this could have come out. Because it was content for the purpose of answering questions. So it is not as though it is so secret it was some detail that was never designed to see the light of day. It was for the express purpose of having someone, a minister or a head of a department, briefed well enough to answer questions that may come their way. That's why I struggle to see the argument about keeping that secret.
00:04:46
Speaker 3: And that's exactly the point. And that was raised in the proceedings and all of the proceedings by saying these documents... were written to help people, to help officials and ministers answer questions in a public forum so that they were well informed to be able to perform their statutory duty of answering to the Parliament and ultimately to the people of South Australia. That's the really weird thing about this.
00:05:15
Speaker 4: Rex, thank you. Well, I think the High Court's made the right decision with regard to the legal fees because whilst No one's excited about taxpayers putting the bill for more stuff. If this is the kind of thing that is not funded by the state, you end up with a scenario where that avenue to justice or to get things clarified doesn't exist for normal people. Governments can forever escalate it to a court beyond the capacity for people to pay, which is not how we– I don't think anyone would like justice to be done in this country.
00:05:44
Speaker 1: No.
00:05:45
Speaker 2: We have a statement from the government on this.
00:05:48
Speaker 1: The Court of Appeals decision significantly departed from the previous understanding of how parliamentary privilege applied to documents prepared for use in Parliament.
00:05:59
Speaker 2: Okay, so that's the argument.
00:06:01
Speaker 1: Consideration by the High Court will put beyond doubt how the law operates in this area.
00:06:05
Speaker 2: We welcome the decision. As the matter's before the court, we can't comment further.
00:06:09
Speaker 1: So it sounds like they will proceed with this, which means you, listening right now, the taxpayer, will be paying whatever the government's legal fees are to attend the High Court and whatever.
00:06:17
Speaker 2: Rex Patrick's legal fees are, all because the.
00:06:20
Speaker 1: Government doesn't want you to have access to a document that was prepared by a public servant for you to get access to.
00:06:25
Speaker 2: LAUGHTER Make sense of that.
00:06:31
Speaker 3: Yeah.
00:06:32
Speaker 4: Well, let's hope we'll see what the High Court decides and then at least this will be done with.
00:06:40
Speaker 3: Yeah.
00:06:41
Speaker 4: I suspect in the event that they rule in favour of Rex Patrick, he'll get access to these documents and the way in which people are briefed for Senate estimates or estimates here locally will forever change and they'll find another way to keep it quiet. But anyway, it'll be interesting to see how this one does get played out.
