Federal Court rules ex-minister’s secret Toondah conversations to be made public

A developer has lost a legal battle to keep secret conversations about the controversial $1.4 billion Toondah Harbour project held with former federal Environment Minister Sussan Ley.

Former Environment Minister Sussan Ley was briefed on the Toondah Harbour project in 2019.

Secret conversations with a former federal environment minister over controversial plans to develop Cleveland’s Toondah Harbour may soon be made public after a court ruling on Thursday, May 16.

The Federal Court of Australia dismissed an appeal by Toondah developer Walker Group, which had sought to block access to the documents, which included conversations with former Environment Minister Sussan Ley.

The Australian Conservation Foundation had requested access to the behind-the-scenes conversations.

But Walker Group claimed they should be exempt from disclosure under the Freedom of Information Act as their release could damage its business interests and deter future information sharing with the federal government.

Walker Group had originally planned to build 3600 units on the foreshore at Toondah Harbour. Picture: Walker Group

The Toondah conversations with Ms Ley took place in relation to the assessment of the project under the Environmental Protection and Biodiversity Conservation Act.

Despite Walker’s objections, the federal Environment Department decided to release some of the documents.

Walker Group, which withdrew its application for the project last month, then sought a review by the Information Commissioner.

When a delegate of the Commissioner opted not to review the decision, Walker appealed to the Administrative Appeals Tribunal. It upheld the Department’s decision to make the documents public.

Walker Group appealed to the Federal Court, raising four legal questions regarding the AAT’s interpretation and application of the FOI Act’s conditional exemptions.

In his ruling handed down on Thursday, Federal Court Justice Michael Wigney dismissed Walker Group Holdings’ appeal, finding no errors of law in the AAT’s decision.

The court held that the AAT had correctly interpreted and applied section 47G of the Freedom of Information Act.

As a result, Walker Group Holdings was ordered to pay the Department’s costs for the appeal.

Additionally, a non-publication order, which had been in place to prevent the release of certain document parts during the proceedings, was due to expire 28 days after today’s judgment.

This gives Walker Group Holdings time to file an appeal and seek a continuation of the non-publication order if desired.

Conservation groups including The Australian Conservation Foundation want to stop the harbour development. Picture: Redlands2032.

The Australian Conservation Foundation welcomed the court ruling, calling it a victory for public disclosure.

Foundation legal counsel Adam Beeson said the information would give the public a true picture of what the Department told the former Environment Minister Sussan Ley about the Toondah Harbour project in 2019.

“ACF expects it may also reveal what goes on behind the scenes between a government department and a property developer,” Mr Beeson said.

“ACF initially requested these documents in 2019. It has been a five-year saga to try to get hold of them.

“Although we are happy with today’s outcome, it also highlights the ridiculous delays members of the public and charities face in trying to legitimately gain access to documents through Freedom of Information.

“The FOI process needs reform.”

Walker Group was contacted for comment.