The (hypothetical) diary George Brandis did not want you to see, and why

By Natalie Hickey, September 8, 2016

The battle lines were drawn some time ago between Commonwealth Attorney-General (George Brandis) and former Attorney-General (Mark Dreyfus) about the ambit of the Freedom of Information Act 1982 (Cth).  In the aptly named case, Attorney-General v Honourable Mark Dreyfus [2016] FCAFC 119 (6 September 2016), Mark Dreyfus has taken out line honours in the Full Federal Court.

In a display of ‘one stop shop’, Mark Dreyfus represented himself in the litigation, turned up to court to collect the judgment, and then (very happily) conducted his own press conference on the Court’s doorsteps afterwards.

Reading the judgment, one is left with a few questions. First, why did Mark Dreyfus want to look at George Brandis’ diary?  Second, why did George Brandis not want to show it to him? Third, does this set some kind of legal precedent, justifying the High Court’s intervention? Finally, should we care?

Why did Mark Dreyfus want to look at George Brandis’ diary?

You won’t find the answer to this in the Full Court judgment.

One journalist did ask Mr Dreyfus this question at his post-victory press conference… at the very end of the conference, after all other questions had been exhausted.

It is possible Mr Dreyfus remembers little about his decision to launch legal proceedings against the Attorney-General for access to his diary. After all, that request was made a long time ago, and there is a lot of legal water under the bridge.  The battle is now about something far more important: Transparency! And accountability! How do I know?

This is how

That said, it appears the issue is not what was in the diary during 2013 to 2014 in the lead up to the Federal Budget. Rather, the issue is what was NOT in the diary.

This is because Mr Dreyfus told Fairfax Media in November 2015 that a number of major policy decisions, including to defund environmental defenders’ offices, had been made without consultation.  He had apparently been told by many stakeholders in the legal and arts communities that they could not secure appointments with Senator Brandis prior to those decisions being made.

Mr Dreyfus reportedly added:

“I think it’s very important that the Attorney-General or any minister personally meet with people who are affected by the decisions taken in his or her portfolio. That’s the practice I adopted when I was attorney-general and it’s a practice I expect of all Commonwealth ministers.”

In other words, he wanted to see the diary to prove that Mr Brandis made a number of defunding decisions essentially of his own volition.

Why did George Brandis not want to show it to him?

The Full Court judgment does answer this question.  However, rather than a dry recitation of the reasons, here is a hypothetical sample from George Brandis’ diary (emphasis: I totally made this up, and no offence intended) to demonstrate the arguments made.

This hypothetical extract shows a person much less hard working than the very hard working Attorney-General revealed by the confidential diary extract made available to the Administrative Appeals Tribunal (AAT) and later to the Full Federal Court.

The confidential diary extract revealed that the Attorney-General worked six and sometimes seven days a week, and had on average about 12 appointments a day.

The diary was said by the Attorney-General to contain all Mr Brandis’ appointments, including those in a personal capacity, although after reviewing the confidential diary extracts, the AAT observed they did not appear to contain anything of a personal nature.

Further, the above ‘extract’ is in daily form, whereas Mr Dreyfus wanted the diary in weekly format. Notably, Mr Dreyfus did not seek any invitations, correspondence, or background or briefing documents which might be attached to or otherwise kept in the Outlook calendar.

Here are George Brandis’ objections, and how the Full Court dealt with them, having regard to the hypothetical extract:

• Objection 1 – Disclosing Ministerial movements or travel arrangements might represent a security risk because they might disclose a “pattern of behaviour”.  In our hypothetical extract, possible patterns might be revealed by the reference to “wake up call”, shopping at Country Road, “dancing lessons” or even dinner at Aubergine.  However, the AAT was not impressed by the Attorney-General’s argument because it was pitched at a level of generality rather than by specific reference to Mr Brandis’ diary.  This argument was not pursued on appeal.

As for the Country Road jumper, this was real and developed a life of its own, on the Internet anyway (see also Mike Bowers wearing it for Talking Pictures on ABC Insiders here)

Some may remember a spot of bother about parliamentary expenses after Mr Brandis reportedly “tore up the dance floor” at Mike Smith’s wedding

And there was also a little controversy over a London dinner in 2014

The nature of Mr Brandis’ library also made for interesting reading

• Objection 2 – Before handing over the diary, the decision-maker would be obliged to consult with every person Mr Brandis had a meeting with in the affected period to find out whether or not they had a problem with the extract being released, and this would take forever.  However, the AAT disagreed with the time estimate (many meetings were with staffers not third parties), and also the process (consulting with third parties should be the last not the first port of call, it found). Our hypothetical extract illustrates that a meeting with ‘Ms Hatchet’ would definitely fall into the ‘I want this to be exempt’ category, but the AAT had not seen such an example and from the confidential diary extract reviewed, considered something like this would happen only rarely.
• Objection 3 – One has to go behind some diary entries to investigate whether or not they should be disclosed having regard to whether the meetings were work related (disclose) or personal and private (potentially exempt). Our hypothetical example refers to ‘important political machinations with Liberal BFFs’.  In accordance with the Attorney-General’s line of argument, one would need to make independent checks to determine whether the meeting was with ‘mates’ (personal – exempt) or related to his official, Ministerial duties as the Attorney-General (disclose). The AAT, however, took the view that the actual diary entries were so limited in the details provided (essentially date, time and certain limited meeting or appointment details), there was little to no need to go behind them.

Does this set some kind of precedent, justifying the High Court’s intervention?

If the Full Court has its way, definitely not. The judges were at pains to emphasise that the AAT had engaged in a “practical” analysis of the diary entries. Simply put, the diaries did not disclose very much detail, and there was no apparent basis to turn the process into an inquisition.

The Full Court also noted that a number of the Attorney-General’s arguments were pitched at a level of generality unrelated to a precise examination of the relevant entries.

Therefore, any further scrutiny of this case would likely be based on a ‘high level’ analysis of whether or not the AAT’s construction of the consultation provisions of the Freedom of Information Act (ss. 27 and 27A) can be justified.

If the Attorney-General were to take this issue further, he would likely argue that the approach of the Full Court and AAT was unduly narrow, having regard to one of his legal team’s own hypothetical examples put before the Full Court:

Imagine a diary entry recording a meeting with a particular member of the religious community. It might not be apparent to the decision-maker why a meeting with the person was sensitive. On the Tribunal’s (arguably erroneous) approach, no consultation would be required unless the decision-maker happened to know the sensitivity associated with disclosure. 

In response, Mark Dreyfus might respond: This case turns on its own facts. The diary entries lack relevant content so it does not matter if they are disclosed. The fact of a meeting with X is not sufficient to cause anything of a sensitive nature to be disclosed.

Will this matter go further? Only time will tell.

Should we care?

I have seen this legal stoush described as “niche”.  That seems apt.

However, it is relevant to consider that over 95 countries around the world have introduced some form of Freedom of Information legislation.

Australia was one of the first to introduce legislation, proposed initially by the Whitlam Government in 1974, but later enacted by the Fraser Government in 1982.  A true bipartisan commitment, in the end.

In the United States, these sorts of laws are called “Sunshine Laws” which is certainly a lyrical way to illustrate a desire for transparency by our lawmakers.

However, before sinking the boots into the Attorney-General’s Department for its apparent departure from ‘transparency’ and ‘accountability’, one should also remember that it has oversight for another equally important but inherently inconsistent right, namely, ‘privacy’.

Accordingly, I think we should care, but not by examining the concepts of transparency and privacy in isolation from one another.  It is the tension between them that requires attention.

In that context, and contemplating my somewhat fantastical hypothetical diary extract, should one be compelled to hand it over to my arch rival who is plainly seeking to engage in some political point scoring? Where should one draw the line?

Perhaps one answer lies in downing legal tools, handing over the requested documents, and in this world of political instability, accompanying them with a note that states: Be Careful What You Wish For.