Minister Ley to face legal challenge on refusal to grant access to documents about controversial ‘fast tracked’ projects

The Australian Conservation Foundation (ACF) will today file a case at the Administrative Appeals Tribunal (AAT) challenging Environment Minister Sussan Ley’s refusal to release documents requested under Freedom of Information laws about 15 ‘fast tracked’ environmental approvals.

ACF’s case will challenge the Government’s use of ‘national cabinet’ exemptions to avoid FOI disclosures.

Legal advice obtained by ACF last year found it was not clear whether or not national cabinet documents would automatically attract the cabinet exemption.

The case, to be argued by leading Australian barrister Geoffrey Watson SC, will also challenge the use of a ‘deliberative material’ exemption which requires a public interest test. Minister Ley’s office argued the release of the material was not in the interest of the public. ACF represents 700,000 Australians who care about nature.

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.

“These documents could reveal discussions between Minister Ley and the Prime Minister’s office about how 15 projects were given priority treatment over others and the basis of their approvals,” said Jolene Elberth, Democracy Campaigner at ACF.

“Australians absolutely have a right to know how the Government makes decisions about protecting or not protecting the environment.”

The Government’s attempts to extend cabinet secrecy to the work of members of state and territory governments and handpicked fossil fuel industry and business figures have been broadly criticised by legal and integrity experts.

“This is just the beginning of a range of cases Government ministers and departments can expect if they continue to ignore their legal and democratic responsibility to the community enshrined in the FOI Act,” said Isabelle Reinecke, Founder and Executive Director at Grata Fund.

“Since launching our FOI Project we have received inquiries for support across a range of areas. Those attempting to circumvent FOI law should consider themselves on notice,” she said.

An ACF report released in January found an increase in FOI refusals, more redactions, higher charges and longer delays all plaguing Australia’s system of access to government documents.

The case will be filed at the AAT today, with a hearing date expected to be scheduled for later this year.

The case, to be argued by Environmental Justice Australia (EJA), highlights one of many issues with the administration of FOI law identified by Grata Fund that prevent public scrutiny of Government decision-making. Many of these issues have never been challenged in court.

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