Scott Morrison has suffered many setbacks in recent weeks, but probably none more needling than the one dealt earlier this month by independent senator Rex Patrick in a case before the Administrative Appeals Tribunal.
The 5 August ruling by Federal Court judge Richard White, sitting as a presidential member of the AAT, stripped away the prime minister’s veil of secrecy around proceedings of the national cabinet, in which Morrison meets state and territory leaders to discuss pandemic strategy.
The judge upheld Patrick’s appeal against the refusal of the prime minister’s department to disclose the national cabinet’s minutes, and tore into its argument that the group met as a subcommittee of federal cabinet and was therefore subject to the twenty-year secrecy rule.
The government was given twenty-eight days to appeal before the judge’s decision takes effect. But any appeal must be based on points of law, and the options seem narrow. Patrick says he is ready to fight for the documents in the Federal Court and the High Court if necessary. “If they want to push on with it, there’s no harm from my side,” he tells me.
In fact, the crossbench senator is basking in the attention his secrecy-busting has attracted, and that’s invaluable for a first-term independent facing election within ten months. “People who are really engaged in politics and perhaps law and transparency issues are very interested in the fact of the judgement, the nature of the decision,” says Patrick. “Everyone else just says good on Rex for beating up Scott.”
The appeal is the latest in a dozen wins on freedom of information cases Patrick has taken to the AAT, the federal information commissioner and appeals bodies back in his home state of South Australia.
Transparency has been his campaign theme since taking his old boss Nick Xenophon’s place in the Senate in November 2017, following Xenophon’s resignation to contest the South Australian election, unsuccessfully as it turned out. On his first day as senator, Patrick sought details of water buy-backs in the Murray–Darling basin, eliciting the independent valuations that eventually showed that the federal government had paid vastly excessive prices to private interests for the water.
Some 200 FOI requests and pointed questioning of public servants in Senate estimates have made Patrick something of a terror for the government and bureaucracy. Xenophon dubbed him “Inspector Rex,” after the tenacious German shepherd in the beloved Austrian and Italian police series.
On one occasion, Patrick was in the AAT arguing against seven lawyers for the Commonwealth and a company. He has spent approaching $15,000 of his own funds in pursuing FOI applications, and in many cases he has also been able to make gratis public interest claims as a senator. He gets good advice: in the national cabinet case, the Canberra historian and journalist Philip Dorling found a 1940s precedent that undercut the argument of Morrison’s department head, Phil Gaetjens.
A particular focus has been the huge investment in naval shipbuilding in his home state, which started under prime minister Malcolm Turnbull. Patrick has exposed the escalating prices, technical risks and slipping delivery times of the now $90 billion future submarine and $45 billion future frigate builds. Coming from a background in the navy and the defence industry, he carries authority. “When I read him, I think: this bloke does know what he’s talking about,” says Haydon Manning, an adjunct professor of politics at Adelaide’s Flinders University.
Patrick’s new target is the Howard government’s policymaking on the Timor Sea maritime boundary with Timor-Leste, just as the new nation was emerging from a United Nations interregnum following the end of Indonesia’s occupation in 1999.
Those maritime discussions were a prelude to the bugging of Timor-Leste government offices in Dili by the Australian Secret Intelligence Service in 2004 during fraught boundary negotiations. Distinguished Canberra lawyer Bernard Collaery and a former ASIS officer named only as Witness K are on trial over alleged disclosure of the operation.
Patrick told the Senate last week that the operation was probably illegal and therefore improperly authorised by then foreign minister Alexander Downer for the benefit of Australia’s Woodside Petroleum, which led a consortium with rights to the big Greater Sunrise natural gas deposit straddling the contested sea border. Noting that former attorney-general George Brandis stalled the prosecutions of Collaery and Witness K for three years, Patrick questions his successor Christian Porter’s judgement in letting them proceed.
Again, the fact that he speaks as someone who was once immersed in the armed forces, and almost certainly in intelligence-gathering, strengthens his point that this was an egregious misuse of ASIS.
Having migrated with his parents from New Zealand, Rex Patrick grew up in the coastal South Australian town of Whyalla, where he joined the navy aged sixteen. Once his talents were spotted, he was trained as an electronics engineer, running radar, sonar and communications systems. His sea service during the 1980s was mostly on the Oberon-class submarines, legendary for snooping on naval bases in places like Vladivostok and Shanghai. Patrick is guarded about the details. “Everyone in submarines is cleared to top secret, and will find themselves at some stage conducting highly classified surveillance and intelligence operations,” he says.
After eleven years he left for a specialist sonar company, working with navies around the world, and then set up his own sonar advisory company. A decade ago, his writings for defence industry journals about the looming replacement of the Australian navy’s present Collins-class submarines led to him advising former Coalition defence spokesperson David Johnston.
But he declined an offer to join Johnston’s staff when the Liberal MP became defence minister in 2013. Unhappy that the major parties approached all issues from a partisan viewpoint, he was attracted by Xenophon’s different “algorithm” when someone asked him to take up an issue: “If it was right and he could do something about it, he would take it on.”
Patrick shut down his company and started working in Xenophon’s Senate office. But he didn’t anticipate filling Xenophon’s seat. “I’m an accidental senator — I never ever sought a pathway to entering politics,” he says. “I got here by seeing the government embarking on the very costly, very risky future submarine project.”
He clearly thinks Canberra would have been better sticking to an existing submarine like the German Type 214. “They are superb submarines, and they will do 90 per cent of what the Australian navy requires,” he said. “Unfortunately, when you try for the other 10 per cent, that’s when you triple the price and quadruple the risk.”
Now the navy waits on innovative French-designed vessels, adapted from a nuclear-powered model, that will arrive ten years later than originally envisaged. In the meantime, the lives of the Collins-class submarines will be extended at a cost of $10 billion.
Patrick’s career also informs his approach to issues like the ASIS operation in Dili. “I came from a submarine background, where submarines conduct intelligence operations, and that happens all the time between countries,” he says. “Nations keep an eye on their neighbours and their capabilities and I have no objection to that. I also have no objection to intelligence services looking out for us.”
But this was different, he says. “This was a negotiation that in law was supposed to be in good faith. That’s what we signed up to, with one of the poorest nations on earth. Ultimately that operation harmed our relationship with East Timor. I’ve been up there. I’ve seen the Chinese building freeways on the southern plateau, power lines, ports. I can’t help but think that the Chinese have gained a strategic foothold based on Australia treating them in an awful way.”
From his maiden speech onwards, Patrick has pressed for parliament’s intelligence and security committee to have the same powers of investigation over intelligence services as the equivalent committees in the United States Congress. Australia’s Intelligence Services Act of 2001 created the committee but barred it from looking into any past, present or proposed operations.
Following up on Patrick’s statement last week on the Collaery–Witness K prosecutions, Labor senator Katy Gallagher says a Labor government would authorise an inquiry into the Dili operation, first amending the Intelligence Services Act to allow it. Patrick will believe it when he sees it, as Labor has voted against his similar amendments on six occasions.
Clinton Fernandes, a UNSW professor of international relations who has also battled intelligence secrecy with FOI appeals, gives Patrick full marks for persistence. “There are others like [MP] Andrew Wilkie and [senator] Nick McKim and so on, but in terms of consistency and banging the drum as often as he can, it’s Rex Patrick,” Fernandes says, adding that “his opposition is not to the intelligence system as a whole, or even part, but that specific problem that’s not able to be examined.”
Patrick says the amendment would be a crucial safeguard. “The intelligence services have greatly increased powers since the establishment of that committee, powers exercised in secret, and generally involving impositions on people’s liberties and rights to privacy. And my view is you have to have the correct checks and balances in place.”
His attitude brought him into public dispute with a key figure behind those greater security powers. After the Australian Federal Police raids on the ABC’s Sydney headquarters and the Canberra journalist Annika Smethurst in 2019, Patrick said then home affairs minister Peter Dutton and department secretary Mike Pezzullo “clearly hate media scrutiny” and had a double standard about leaks. Pezzullo rang Patrick and asked him to “reconsider” his remarks. Patrick took this as threatening and pushed back. Pezzullo was given a pro forma rebuke by Dutton.
Federal governments have had Senate majorities for only thirty months over the past forty years, and Australia probably accepts the virtues of the upper house’s plural voices, especially as that last spell of government control, in 2005–07, led to John Howard’s overreaching with his WorkChoices legislation.
As well as scrutinising and proposing amendments to legislation, the Senate and its committees have an important oversight role, says Patrick. “The most important thing about Senate estimates is not what gets revealed there, but that the people who are working in government buildings who are making decisions and spending taxpayers’ money must always be thinking: what or how will I answer questions about what I’m doing at the next estimates?”
For the crossbenchers who put the swing factor into this oversight, a Senate career is often just six years or less. The Greens have their niche vote, and some earlier splinters from the main parties, like the Democratic Labor Party and the Australian Democrats, had a longer span. For others, like Jacqui Lambie and Pauline Hanson, longevity can depend on personal projection. That’s why Patrick cut himself loose from the Centre Alliance with the aim of boosting his own name recognition.
South Australian voters tend to kindness towards politicians in the middle. Flinders University’s Manning says they liked the late Janine Haines’s “plague on both your houses” approach when she led the Australian Democrats. They backed Steele Hall when he split from the old Liberal Country League to form his Liberal Movement, and later returned to the Liberal Party. Local Labor leaders like Don Dunstan and John Bannon were hardly blue-collar. So Xenophon’s group fitted well into that moderate, centrist tendency.
Even so, Manning thinks Patrick may struggle for re-election. To win a slot, he will need 14 per cent or slightly more of the vote. “He might get 5 per cent but where’s he going to get the preference help?” says Manning.
“The sad reality is you can be as smart as anything as a senator, you can be really good on policy, but in the end do most voters get what you’re going on about?” says Manning. “I’m not so sure.” Xenophon carefully based his media “stunts” on policy issues he knew would resonate broadly, like poker machines, he says. “Do most voters really ponder about the national cabinet and its machinations? Though it’s really important and interesting, I did wonder about Rex on that one.”
Patrick says he is getting a steady flow of small campaign donations. He has also been careful, he says, to balance his efforts with bread-and-butter issues like JobKeeper and tax compliance. His strong stand against China’s treatment of its Uighur minority has attracted support, even though the state’s wine industry has suffered for Canberra’s frosty relations with Beijing.
“I would like to be re-elected,” says Patrick. “I like what I do, and I think I do reasonably well as a single person, with a very good team working behind me. But if I got to the election and was unsuccessful, I would just move on to the next stage of my life without batting an eyelid.” •
The publication of this article was supported by a grant from the Judith Neilson Institute for Journalism and Ideas.
