Sussan Ley facing legal challenge over project approvals secrecy

The major projects were intended to assist in post-pandemic 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.

The spokeswoman for the minister says they have complied with freedom of information laws. She refused access to emails between her and Prime Minister Scott Morrison over how those approvals were chosen and deemed the correspondence not in the public interest.

That refusal is being challenged by the Australian Conservation Foundation and Environmental Justice Australia. Senior counsel Geoffrey Watson will argue the case which is being filed with the Administrative Appeals Tribunal on Tuesday.

The minister cited an exemption for Commonwealth cabinet deliberations in her refusal, which allows the Prime Minister and senior ministers to debate policy matters without having to release documents under freedom of information laws.

However the fast tracked approvals were instead granted by national cabinet, a separate and unrelated forum for state and territory leaders to coordinate on policy matters with the Prime Minister created in March to deal with the pandemic.

The foundation received legal advice that it was not clear whether or not national cabinet documents would automatically attract the Commonwealth cabinet exemption. It appealed the original refusal to the Office of the Australian Information Commissioner, which decided not to take the matter further.

Integrity experts criticised the broad use of cabinet freedom of information exemptions to extend to the work of state and territory governments and handpicked fossil fuel industry and business figures.

Jolene Elberth, democracy campaigner at the foundation, said the documents could reveal discussions between Ms Ley and Prime Minister's Office about how those projects were given priority treatment over others.

"Australians absolutely have a right to know how the government makes decisions about protecting or not protecting the environment," Ms Elberth said.

Isabelle Reinecke, from the public interest legal organisation Grata Fund, has been investigating how freedom of information laws are misused to prevent public scrutiny of government decision-making.

"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 Ms Reinecke said.

"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."

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In January a report by the foundation identified an increase in refusals, more redactions, higher charges and longer delayed all plagued the freedom of information system.

The report's figures show outright refusals for information requests had risen by nearly 50 per cent in the past five years while ministerial refusal figures remained high.

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

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