Wednesday, 12 May 2010
Information Commissioner Bill 2009; Freedom of Information Amendment (Reform) Bill 2009
I am pleased to have the opportunity to speak on the Information Commissioner Bill 2009 and the cognate bill, the Freedom of Information Amendment (Reform) Bill 2009. In 1976, Malcolm Fraser said:
If the Australian electorate is to be able to make valid judgements on government policy it should have the greatest access to information possible. How can any community progress without continuing and informed and intelligent debate? How can there be any debate without information?
Malcolm Fraser’s comment is not only incontrovertible but, surely, uncontroversial. In fact, it is extremely logical, but, as John Hartigan, the chairman and CEO of News Ltd, who quoted that very passage at a freedom of speech conference, pointed out:
30 years later, we are still waiting for the fulfilment of those ideals.
Freedom of information was designed to ensure that the community could have continuing, informed and intelligent debate. It gave people the right to know—to seek documents held by government ministers, their departments and most statutory authorities, as well as personal information the government holds on individuals. Government was to be open and accountable, available for all to see and scrutinise, but with some understandable specific exceptions, such as matters relating to security.
It has taken time for governments and the Public Service to adopt such an open, accountable attitude and to accept that information in the public sphere is not the enemy, that the information departments hold is not solely for their eyes and that the public should be able to ask for information without the spectre of interrogation and mistrust.
It was interesting to read an article in the Australian by Senator George Brandis, the shadow Attorney-General. Commenting on the development of this legislation, he said:
Access to government information was as much about the attitude of the public servants who administered the act. So Faulkner committed the Rudd government to the creation of ‘a pro-disclosure culture within government and the public service around the release of, and access to, government information [to] change the culture of FOI from one of resistance to one of disclosure’.
So, although black-letter law such as we are passing in this place today plays an important part in ensuring that the freedom of information policy can operate the way it was intended, also important is making sure there is a change of mindset and that ministers and everyone working in ministers’ offices and government departments understand that the public have a right to know and that intelligent debate cannot ensue if people do not have access to information, as Malcolm Fraser said in 1976.
But attitudes are changing, and the Public Service, led by ministers, has been increasing transparency. The ideals of freedom of information have been getting traction. Then Senator Faulkner, when Special Minister of State, proclaimed a new dawn for even greater transparency, pointing to these bills in front of us as just the start. My concern is that this dawn will never break. Some changes have been made in this legislation—that is true—to reduce the cost of freedom of information requests, but will the obstacles to obtaining relevant material remain firmly in place? That is the question that we all need to ask and the issue we all need to examine.
The freedom of information bill abolishes all charges for a person seeking access to their own information. Previously there was a $30 application fee plus decision-making time fees. All charges are now abolished where a person is seeking information about themselves. All other freedom of information application fees—that is, where applicants seek access to government documents—are also abolished. This has been quite a significant problem for many people seeking information, as I will outline in more detail shortly. The decision-making time fee, which is set out in schedule 5 of the regulations to the act, currently $20 an hour, is waived for the first hour of all requests. For journalists and not-for-profit organisations, the first five decision-making hours are charge free. The distinction recognises that journalists and NGOs in the pursuit of information to inform public debate or criticise the government may place wide-ranging or technical requests that require greater examination by the relevant department. To further enhance this bill, the five-hour charge-free provision should be extended to universities, historians, researchers, writers and, dare I say it, politicians. People undertaking these professions also add to the public debate and inform society. Perhaps they too should be allowed the same concessions.
Access time periods under the Archives Act are reduced by this bill as well. Commonwealth records can be accessed after 20 years, down from 30 years, and cabinet notebooks after 30 years, down from 50 years. Under division 2, certain information must also be published by an agency—that is, the structure of the agency, its functions and decision-making powers, senior officers, annual reports that are made available to parliament, information routinely provided to parliament, and how and when specific policy proposals can be commented on by members of the public. Overseeing the architecture and application of the Freedom of Information Act will be a new Information Commissioner.
The mentioned measures are logical additions and certainly have my support and, I expect, the support of most people in this place. But the pertinent question is whether the government is really committed to transparency; or is this mere decoration to hide the ugly truth? The government is required by the Freedom of Information Act to release an annual report. It did so nearly two months after the minister signed off on the report. It is disappointing that the report was released right at Christmas, when everyone was on holiday and somewhat distracted with Christmas festivities. You have to ask why. A cynic might say that it showed that under this government there has been less freedom of information. During the previous, coalition government, in the financial year 2006-07, 80.6 per cent of freedom of information requests were granted in full, but under this government, in the financial year 2008-09, that plummeted to 71 per cent. So people can be excused for feeling somewhat cynical about this.
Page 6 of the report reveals more curious statistics. The Australian Federal Police refused in full only 16.6 per cent of all freedom of information applications received, but the Civil Aviation Safety Authority refused 34.69 per cent. I am perplexed as to how the agency charged, in the interests of public safety, with regulations for aircraft and air traffic management requires more secrecy than an agency which undertakes surveillance, covert operations and counterterrorism activities.
Let me give the House a real-world example about freedom of information. Constituents in my electorate have complained to me about a dramatic change in aircraft noise. As a matter of fact, it is the subject of a national Senate inquiry at the moment. Flight paths were changed without open, public consultation and the ramifications for people in the electorate of Pearce were real: it devalued their properties, it destroyed the quality of life in an area that is quiet and peaceful up in the hills outside Perth and it has left many people sleep deprived, so naturally people are very angry about it.
In investigating why such a change happened without any open public consultation, I put a number of questions to Air Services Australia—the federal government owned corporation providing air traffic control management services to Australia’s aviation industry. They told me that the basis for the changes rested on a CASA report which made safety recommendations, and that was the impetus for the change. I met with Air Services Australia again and asked to view a copy of the report, but they refused. I wrote to the minister and asked for the report and I was refused that report. My only option then was to apply under freedom of information to CASA directly, after also approaching CASA for the report, and I therefore wrote a cheque and paid the fee for the information.
Some initial research on CASA’s and Air Services Australia’s websites revealed a discrepancy over which was the actual report that led to the changes, so in my FOI request I requested the report that led to the sudden changes to flight paths in 2008 and noted the report in question would make reference to CASA regulation part 172, which deals with safety management and air traffic services. The report that I received after paying the fee consisted of 10 pages, but when I received it, the vast majority was marked ‘deleted’. Only four sections with references to regulation part 172 were left, amounting to about 1½ pages.
Peter Cromarty, the Executive Manager of Airspace And Aerodrome Regulation, informed me in his covering letter that he decided to release the report with material ‘outside the scope’ deleted. I am quite puzzled as to how parts of the report could be ‘outside the scope’ when I requested the report itself. My reference to part 172 was used as justification to narrow the information provided to only the four sections specifically mentioning part 172 and deny access to the rest of the document as being outside my request. The report goes to the heart of the issue—that is, whether the change really was for safety reasons or not. As most of it was blacked out, seemingly ‘outside the scope’, the public would have every right to question the role of that document as the reason for changes to flight paths in Western Australia.
My experience highlights the overly legalistic approach so often applied to FOI requests. Requests can be read down to the black letter, minimising their apparent scope, thereby allowing the peripheral and often more enlightening supporting information to be excluded. That was certainly the case here. No wonder people feel cynical about the operation of freedom of information. The fact that this culture of secrecy exists is worrying in a democratic country. But the fact that this secrecy culture is growing when the Rudd government says it is increasing transparency is, frankly, alarming.
If members of this House are still not convinced of the problems faced by people seeking information, I would direct them to an informative article entitled ‘The minister is protected, but from what?’ by Mike Steketee in the Australian, published on 21 November 2009. In the article, Steketee details how Richard Denniss of the Australia Institute lodged a freedom of information request. He asked for the internal assessment of the limitations of the proposed emissions trading scheme from the department of climate change. After receiving nothing substantial, and having his application for an internal review rejected, he placed an FOI request regarding his initial FOI request.
The material uncovered is enlightening. For instance, Steketee reports that Neil Hughes, the director of the emissions trading division, rang Richard Denniss to confirm whether his request included material involving the minister. The answer was yes. But, later, Hughes circulated an email saying:
The secretary and deputy secretary have agreed the request does not refer to the minister, therefore ministerial briefing is now excluded from the request.
At another point, Steketee reports that Neil Hughes, a director of the emissions trading division, queried in a meeting, ‘how we can increase the charges, extend the deadline’. Such examples are not isolated. After the government’s failed National Broadband Network tender, Senator Nick Minchin lodged an FOI requesting documents. Previously the government had refused to release any documents, despite two Senate orders to do so. Senator Minchin then received a $23,851 bill to have the request processed. You did not hear me wrong, Mr Deputy Speaker Sidebottom: Senator Minchin—a senator in this place, in this Senate, in this parliament—received a $23,851 bill in order for his request under FOI to be processed. Freedom of information is certainly not free.
Open, accountable governance is one of the principles which underpin the very foundation of democracy. Without openness and accountability, our democratic system of governance is seriously compromised. Time and time again, from this parliament we have observed parliaments around the world who do not have open and accountable government and the havoc that wreaks on their citizens, in so many ways. As I always say when I am talking to students, democracy is a fragile flower and, if people stop taking notice of what is going on around them and cannot get access to information about what government is doing, it risks unpicking all of the principles that are the foundation of a democratically governed country.
The federal government talks about promoting a culture of transparency, and so far it has been just that—talk. Frankly, the Rudd government’s record, exposed through the records they must disclose under FOI, has shown transparency diminishing. Even where requests are allowed, the process is frustrating. If we in this place feel that frustration in the discharge of our duty to the public, how much more frustrated must members of the public feel? I think that is something for us all to reflect on: if we cannot get this information in the discharge of our duty, how much more frustrating is it for the average citizen out there trying to find out information, sometimes about their own record—sometimes to correct the record about their personal life? How frustrating it must be for members of the public, and how cynical it must make them.
Andrew Dodd’s Radio National program The Law Report on 20 October last year highlighted what I think would be common sense. On the program it was said:
I find it amusing that the department that has the responsibility for the national economy, cannot take credit card payment for an FOI request. In Queensland though, that’s changed with the new Act. You can lodge FOI right to know applications via the internet and pay over the internet. And that’s made life so much easier. It’s passing strange that government agencies are still being dragged reluctantly into the internet era, I find it interesting that they, for some reason, seem to do a lot of work with the internet and seem to have no problems, but when it comes to making life easier for FOI applicants, it doesn’t seem to have trickled down.
It has not trickled down to this place, to the federal government. The ability of a country’s citizens to seek and receive information is at the core of democracy, as I said. Open government guards against corruption. Information keeps governments accountable. But merely saying this does not make it happen. As I said before, we can pass all the legislation we want in this place, but if there is not a change of heart and mind then there are ways of escaping the responsibilities laid down in these acts of parliament, in the black-letter law.
There is a very obvious and widening gap between this government’s rhetoric and its performance. That is seen in a number of areas, and it is certainly being seen in relation to changes to the freedom of information legislation to make it more open and transparent. More and more, the government is withholding information. So I challenge all ministers: lead by example and encourage openness in your departments. There is no true democracy where there is no true open debate. And, as Malcolm Fraser so rightly says, ‘How can there be debate without information?’