Why was this case necessary?

In March 2021, on behalf of our client, the Australian Conservation Foundation, we challenged Environment Minister Sussan Ley’s refusal to release documents relating to 15 “fast-tracked” environmental approvals granted through national cabinet.

The documents in question relate to the fast-tracking of 15 commercial projects designed to “aid post-COVID economic recovery”, including a Perth Airport upgrade, the Narrabri gas field project in NSW and the expansion of the Olympic Dam copper and uranium mine in South Australia.

ACF challenged Australia’s Freedom of Information (FOI) system, which community leaders have warned is failing to provide proper transparency of government behaviour.

Access to two relevant documents were denied on the basis that they revealed the deliberations of national cabinet.

We argued that deliberations by the National Cabinet are very much in the public interest and therefore do not attract confidentiality and documentation cannot be withheld about these fast-tracked developments.

The legal arguments

On behalf of ACF, we argued that the decision required review for these reasons:

1. The documents are the product of deliberations by the National Cabinet – a body which does not attract Cabinet confidentiality;
2. In any event, the documents are not of a class or on a subject to which Cabinet confidentiality attaches;
3. The claim for conditional exemption under s47C of the Freedom of Information Act 1982 cannot be sustained and, in any event, any such claim for public interest would be outweighed by the public interest in the disclosure of the documents;
4. An independent review of the documents should be undertaken by the Tribunal to determine whether there is a substantial basis for either claim of privilege.

After seven months before the Administrative Appeals Tribunal (AAT) on behalf of our client, the Australian Conservation Foundation, we won the case for the release of key documents regarding the decision to fast-track 15 commercial projects in the name of post-COVID economic recovery.
The government attempted to use five different exemption categories to prevent the release of the documents. It has now effectively conceded none of the exemptions apply by releasing all the information to our client ACF, who first requested them in July 2020.

Releasing these documents is an important win for government transparency, especially as it exposes the rushed process behind the 15 fast-tracked environmental projects.

You can read more in ACF’s Access Denied report, which reveals the increasing use of refusals, delays, redactions and higher charges to limit access to key decisions about the environment.