Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Hansard source

Freedom of information laws are essential to Australia's democracy because they give the Australian public and media access to information about what the government elected by the Australian people is doing in their name. Labor has long championed freedom of information laws. The establishment of a Commonwealth FOI Act became part of Labor's policy platform in 1972. With characteristic farsightedness, Gough Whitlam first called for an FOI law in a speech as opposition leader. Though these laws were not passed for another decade, it is yet another example of the reforming vision that characterised Gough Whitlam's political work and which reinforces his place in history as one of the great leaders of this nation.

Since FOI laws were first introduced in state jurisdictions in the 1970s, Labor has worked to strengthen these laws to improve transparency in government and to champion the public's right to know. Before the 2007 election, the federal Labor Party committed to substantially overhaul the FOI Act as part of its policy platform to restore trust and integrity in government after the secrecy and abuses of public trust that characterised the later Howard years. Labor's commitments were set out in the policy document titled Government information: restoring trust and integrity. As that document made clear, the object of the overhaul was to restore trust and integrity in the use of Australian government information and to promote openness in government.

Unlike the present government, which specialises in nasty surprises and broken promises, Labor fulfilled its election commitment to restore the public's right to know. Labor engaged in extensive consultations on the proposed changes to our FOI laws in 2008 and 2009, including through a parliamentary inquiry by the Senate Finance and Public Administration Legislation Committee. The reforms were passed into law by parliament in three separate pieces of legislation in 2009 and 2010. The first of the three acts was the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009 which, among other reforms, repealed the power to issue conclusive certificates for exemption claims under the act; abolishing conclusive certificates gave jurisdiction to the Administrative Appeals Tribunal to undertake a full merits review of any exemption claim brought before the AAT. The other two acts passed in 2010 were the Australian Information Commissioner Act 2010 and the Freedom of Information Amendment (Reform) Act 2010. Again, in a good piece of legislative work, they were first released as exposure draft bills, then introduced to parliament before passing and coming into effect on 1 November 2010.

A key feature of these improved laws was the establishment of the Office of the Australian Information Commissioner as part of the Australian Information Commissioner Act 2010. This office was created to provide independent oversight of the FOI regime and to champion freedom of information across government. This reform was applauded by the public, legal experts and the media. Taken as a whole, the reforms introduced by the three acts I have mentioned were the most substantial reform to Australia's freedom of information scheme since it was established in 1982.

Speaking on Labor's reforms to FOI law in the other place on 13 May 2010, Special Minister of State, Senator Ludwig, noted that:

The passage of the FOI Act was a milestone for Australia. The Rudd government continues to recognise that we are responsible and accountable to the people we serve. For this reason, when we were in opposition we committed to overhauling the FOI Act and we have delivered on this promise. This legislation expressly recognises that giving the Australian community access to government-held information strengthens Australia's representative democracy, recognises the role that this object serves to increase public participation in government processes and increases accountability in the government's activities.

The Australian Information Commissioner Act 2010 established as a statutory body the Office of the Australian Information Commissioner and introduced the statutory positions of Australian Information Commissioner and Freedom of Information Commissioner. The Office of the Australian Information Commissioner has a comprehensive range of powers and functions which are intended to provide independent oversight of privacy and FOI. The OAIC also develops information policy and management across Australian government agencies.

The inaugural Australian Information Commissioner, Professor John McMillan AO, was appointed on 1 November 2010. The commissioner has been ably supported by two statutory officers: the Privacy Commissioner and the Freedom of Information Commissioner. Mr Timothy Pilgrim was appointed Privacy Commissioner for five years from 19 July 2010 and Dr James Popple was appointed FOI Commissioner for five years from 1 November 2010. I take this opportunity to commend Professor McMillan, Mr Pilgrim and Dr Popple for the excellent service that they have provided to the Commonwealth in their respective roles up to this time.

Unsurprisingly, I regret to say, given its liking for secrecy the Abbott government is now seeking to abolish the Office of the Australian Information Commissioner and to introduce other measures to close the door on open government in our nation—and it is doing so without any mandate from the public that elected it. This is a government that wants to hide what it is doing from the Australian public and, when you look at what we do know about what the Abbott government is doing, you can see why they would want to be hiding. This government has been seeking to work in secrecy and to avoid its obligations under the existing FOI Act since it came to office.

The changes in this bill, gutting the public's access to information about what this government is doing, were first announced on budget night. There was no prior consultation—and there has been none since. Notably in introducing these reforms the Abbott government appeared to ignore the comprehensive and independent review of the Freedom of Information Act 1982 and the Australian Information Commissioner Act 2010 completed only last year by Dr Alan Hawke AO. In his review Dr Hawke found that the Labor reforms to FOI were 'working well and having … a favourable impact in accordance with their intent' and 'that the reforms have been operating as intended and have been generally well-received.'

In his review delivered to me as Attorney-General in July 2013 Dr Hawke made a range of practical, helpful and thoughtful recommendations for the improvement of the Commonwealth's FOI scheme. I regret to inform the House that this government has entirely ignored Dr Hawke's recommendations. There is not even a reference to the review conducted by Dr Hawke—and reported on in July last year—in the second reading speech introducing this legislation to the House.

It is worth noting that in advocating for the measures in this bill in a media release dated 13 May 2014—budget night—Senator Brandis, as Attorney-General, argued:

Simplifying and streamlining FOI review processes by transferring these functions from the OAIC to the AAT will improve administrative efficiencies and reduce the burden on FOI applicants.

This is patent nonsense—or, as Professor Richard Mulgan of the Australian National University described the Attorney-General's statement, 'deceitful sophistry'.

The truth is that this bill would abolish the opportunity that members of the public currently have to request the independent Information Commissioner to review a refusal by the government to provide documents under FOI. This right is currently exercisable at no cost to the applicant, but by abolishing the independent Information Commissioner the Abbott government will force anyone wanting an independent review of a government decision to refuse to provide documents under FOI to go to the Administrative Appeals Tribunal where the filing fee alone is over $800. Only the Abbott government could argue that introducing this new regime of heavy fees to replace free, independent oversight will 'reduce the burden on FOI applicants'.

This bill is clearly part of the Abbott government's plan to avoid scrutiny by the public that elected it. This bill about weakening freedom of information in Australia comes from a government desperate to hide what it is doing from the Australian people. This is a bill which should be opposed.

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