The Department of Climate Change, Energy, the Environment and Water has taken legal action to block Guardian Australia from accessing documents about an investigation into illegal land-clearing by Jam Land Pty Ltd in which the shadow treasurer, Angus Taylor, and his brother Richard had interests.
After a four-year battle with the department, which began in April 2018, the Australian information commissioner last month ordered the release of 11 documents.
But a week ago, the department took the unusual step of appealing against the commissioner’s lengthy ruling in the administrative appeals tribunal. The case is likely to be heard next year.
The documents ordered to be released date from 2017 and would probably have shed light on the department’s site visits to the Monaro plains in late 2016 and early 2017 to inspect the damage to endangered native grasslands, which were sprayed with herbicide in late 2016.
They also appear to have included documents that have not been previously referred to.
Angus Taylor is a shareholder in Jam Land via his family company, Gufee. The case has been controversial because Taylor sought meetings in 2017 with senior environment officials and the office of the then environment minister Josh Frydenberg about the laws that protected the grasslands while the investigation was under way.
Taylor has repeatedly stated he “did not make any representations to federal or state authorities” in relation to the investigation into Jam Land.
He said he was acting on behalf of constituents in his electorate of Hume who were concerned the listing of the grasslands – known as the natural temperate grassland of the south-eastern highlands – created an unworkable situation for farmers.
Guardian Australia revealed on Thursday that the federal environment department allowed the National Farmers’ Federation to sit in on a 2019 meeting about the case despite warnings from its own officials it could be a breach of commonwealth prosecutions policy.
This is the second time this year that DCCEEW has taken Guardian Australia to the AAT to block the release of documents related to the so-called grasslands saga, after an order by the information commissioner.
The earlier challenge to three separate freedom of information requests by Guardian Australia was heard by the AAT in September. A ruling is pending.
The four-year battle by the Guardian using freedom of information laws reveals the problems of using such laws to gain access to government information.
Although the act states there is a right to government information unless there is an defined exemption, in practice the long delays often mean that information can be effectively withheld until the news cycle has moved on, governments have changed and the information is no longer relevant.
Appeals to the information commissioner take well over 12 months, due to understaffing and the volume of reviews being lodged.
Even when the office of the Australian information commissioner writes detailed rulings after viewing the documents, departments are now choosing to challenge them.
In June, the attorney general, Mark Dreyfus, told the ABC’s Law Report that departments needed to take “a different approach” and the problem was not with the law.
“You need to have governments paying attention to decisions made by the information commissioner,” he said.
“When the information commissioner makes a ruling, rather than appealing that ruling off to the administrative appeals tribunal or the federal court, a more appropriate response from government would be to simply accept the ruling, because she has very often looked very hard at where the appropriate balance is struck,” he said.
He criticised the Morrison government for refusing to abide by a decision from the AAT which found that the meetings of premiers and the prime minister during the Covid-19 pandemic were not covered by the federal cabinet exemption in the Freedom of Information Act.
“I think it’s really important that when you have a decision made by a court – by a federal court judge, by the administrative appeals tribunal – rather than ignoring the decision, it’s incumbent on governments to pay attention to those decisions and apply them.”
He called for a change of attitude by governments and departments, so that “rather than looking at how little information can be given out, [looking at] how to maximise the amount of government information that is made available to the public”.
In 2021-22 there were 34,236 freedom of information requests to federal departments, agencies and ministers. The lion’s share of these, 75%, were to six agencies, such as Home Affairs, the NDIS and Services Australia, from people seeking personal details.
Many of the appeals to the information commissioner flow from these types of applications.
The commissioner finalised 1,289 reviews in 2021-22, though most were not via decisions.
Of the 103 decisions made by the information commissioner, 55% affirmed the agency’s ruling, 36% were set aside and 10% were varied.
There were 58 appeals to the AAT, of which four were initiated by departments.