Graham Perrett (Moreton, Australian Labor Party) Share this | Hansard source

I also rise to speak on the Freedom of Information Amendment (New Arrangements) Bill 2014. It is a bill designed to implement the new arrangements to deliver privacy and freedom of information functions as outlined in the 2014 Abbott government budget. I commend the member for Newcastle for her contribution and the shadow Attorney-General, the member for Isaacs, for his contribution. I note their particular commitment, both in government—for the member for Isaacs—and in opposition, to open and transparent government.

Sadly, sometimes people who speak loudly when in opposition change their tune when in government. That seems to be what we see at the moment. These measures before the chamber include the repeal of the Australian Information Commissioner Act 2010 and amendments to the Freedom of Information Act 1982, the Privacy Act 1988, the Ombudsman Act 1976 and other acts.

To understand the culture of government, oppositions and their approach to open and transparent government we need to go back a little and explain why the Labor opposition will be opposing this legislation. Freedom of information, or the statutory right of access to government documents, is always a good thing in that it encourages transparency and political accountability and discourages any corruption and other forms of wrongdoing. As a member of parliament from Queensland I know how hard it can be to have that sort of transition. I remember the seventies, when the Bjelke-Petersen government had a completely different attitude to transparency, government accountability and even to the separation of powers.

Australia was actually a leader in the Westminster style democracies in introducing FOI laws in the 1970s and 1980s across a variety of jurisdictions. However, over time the reforms that were rolled in have been shown to be inadequate. There was a minimum of cultural change in government, and a presumption in favour of disclosure was not practised across government. Lots of people were receiving documents containing black lines throughout. Governments were hiding things through commercial reasons or administrative reasons or reasons designed to stymie the flow of information rather than make governments accountable to the public.

There has generally been a view that government agencies could exploit all of the restrictions and gaps in FOI laws to make it more difficult for the public to gain access to government information, especially information that might be politically embarrassing to the government or to the agency. That is not a reason to conceal information. I recently had an FOI request made on my military service records. I do not know what that was about: I was not able to find out who had made the application, but I was quite happy for it to be revealed. I have not heard anything more from it, but it made me, in having my conversations with the decision maker and the defence, understand the decisions that are made by departments.

The bill before the chamber that the Abbott government has proposed will do a number of things. It will abolish the Office of the Australian Information Commissioner, the OAIC, and the positions of Australian Information Commissioner, Privacy Commissioner and Freedom of Information Commissioner. It will provide for an Australian Privacy Commissioner as an independent statutory officeholder within the Australian Human Rights Commission. My understanding is that those arrangements are actually in place as we speak. It will also provide that external merit reviews of FOI decisions will only be available at the Administrative Appeals Tribunal. The AAT obviously costs money—money that a media organisation or a billionaire miner might have, but perhaps not money that a member of the public might have. The changes will also provide for the Attorney-General to be responsible for FOI guidelines, the collection of FOI statistics and providing an annual report on the operation of the FOI Act rather than the Information Commissioner, who was more at arms-length from the government. The changes will also provide for the Commonwealth Ombudsman to be solely responsible for investigating complaints about FOI administration.

In 2009-10 the Rudd Labor government introduced major FOI changes with the principal intention being to promote a pro-disclosure culture across the Commonwealth government that would then build a stronger foundation for more openness in government. These reforms, although potentially risky for the Labor government, were wide-reaching and they affected all aspects of the FOI laws: access procedures, FOI charges, exemption criteria, FOI objectives, the procedure for review of disputed decisions, and publication of information by agencies and FOI reporting by agencies so that they were actually more accountable for what they were concealing as well as what they were revealing.

A major part of those Labor government FOI reforms was the establishment of that new statutory agency, the Office of the Australian Information Commissioner. It served an important role. The previously freestanding Office of the Privacy Commissioner was integrated into the new arrangements and two new statutory positions were established: the FOI Commissioner and the Information Commissioner. The OAIC was then given a comprehensive range of powers and functions to provide that independent oversight of privacy and FOI and advance information policy and management across Australian government agencies.

As I said, these commitments were made when we were in opposition and while it took a while—there was a little bit of debate, and perhaps it was not a perfect mechanism—it was rolled out by the Rudd and Gillard governments. The OAIC was welcomed by FOI advocates, including voices in the media. I know there was the odd person who said it was not the completely right structure, but nevertheless I think overall it was accepted by those who support open and transparent government that this significant shift was a good thing.

One of the problems with the new two-tiered system was rolling it out and having public servants process the applications in time. Obviously we did learn from some of the other jurisdictions—the United Kingdom, Canada and several Australian states—and where they had improved the process. There was more to be done; it had only been introduced a relatively short number of years ago really. So the 2010 changes brought this new two-tiered system of external merit reviews of FOI decisions. The first review was conducted by the Information Commissioner and the second was by the AAT. Obviously the advantage of the Information Commissioner review was that it could be undertaken without prior internal review, without legal advice—obviously a good thing because not everyone was able to afford lawyers—and without application fees.

We are talking about the very foundations of our democracy in that the government is responsible to the people. The building we are in was designed upon those principles. There is a line straight through the building—from the public area to straight under the flagpole and through to the cabinet room—to the Prime Minister's desk. That is the line because the people should have a direct line of access to the government and FOI is a part of that process, making sure that governments are accountable to the people. Obviously, these two chambers that intersect that line of power play a role, but we should never forget that people should have direct access to their government, to the executive.

The 2013 review by Dr Hawke—it was a requirement of the legislation that it be reviewed—noted that the reforms brought in by the Labor government had been operating as intended and had been generally well received. There were a few questions about the new two-tiered FOI merits review process. I think they were particularly raised by some people in the media, but, nevertheless, over all, because the new mechanism had only been operating for a while, it was given the tick of approval. So the Labor opposition were a bit surprised when the government announced the abolition of the Office of the Australian Information Commissioner in the budget—on that horrible night when the budget was visited upon the Australian people. So many horrible things. That budget was a betrayal of all that is decent and Australian, I would suggest, and hence the problems for those opposite trying to sell it. So that announcement of the attack on FOI was completely unexpected. It was not in the National Commission of Audit recommendations at all, there was no mention of it at all, so it was a surprise. The budget measure relating to the OAIC was explained as follows:

From 1 January 2015, the OAIC's status as an agency under the Financial Management and Accountability Act 1997 will cease and funding for ongoing functions will be transferred to other agencies.

The foundation blocks of democracy are open and transparent government, and for this small saving they were going to sacrifice one of those features of good government.

Two of the three commissioner positions—the FOI Commissioner, James Popple, and the Information Commissioner, John McMillan—are to be abolished but the Privacy Commissioner, currently Timothy Pilgrim, who does good work and has appeared before a number of committees that I have either chaired or been a member of, is to be transferred to the new position of Australian Privacy Commissioner operating independently within the AHRC. Obviously there would be some redundancies, and the budget papers estimate a saving of 23 positions, so making sure that there are enough people to do the job of providing freedom of information will be a challenge.

With those comments, I think I have explained clearly why Labor is opposing this piece of legislation. The OAIC has only been operating for three years, and that is a very short time to get a new body humming—obviously, there are always some teething problems for any department when they are combining and making sure that they are getting all their systems set up—so disbanding that body is very premature. The Information Commissioner review showed that there had been a jump of 54 per cent in the number of completed Information Commission decisions, up from 419 to 646, and the time lag going in opening new cases had been reduced from 206 days down to 40 days, which I would suggest is not an unreasonable time. They were definitely just finding their feet in terms of being able to process requests and make sure that the commonwealth government is held to account by those who seek information.

The Attorney-General has argued that the changes will lessen the burden on FOI applicants—I find that very hard to believe. He has not detailed how that will take place. Media groups are an important part of our democratic process. I mentioned this building before and the Reps, the Senate, the public and big government. The other resident of this building is the fourth estate, who play an important role in keeping us honest as parliamentarians and governments. So, media groups do use FOI regularly. It has been put to me that they are generally in favour of a return to the AAT review. However, that $870 application fee might be okay for a mainstream media organisation but it is not for an individual—that is disappointing. The ordinary citizens who we answer to have a line of power from the front of the building through to the government, through to the cabinet, through to the Prime Minister—we should be looking after their interests and not just the interests of large-scale media organisations. If we focus on the mainstream media groups too much we will lose what it takes to be a healthy democracy.

The return to compulsory internal review prior to seeking an AAT review will have implications on agency resources and timeliness. We will see how the data is presented by the Attorney-General in the months and years ahead. I am sceptical. I live in hope, I guess, but I think that they have acted prematurely and that is why we are not supporting this piece of legislation. Under the Rudd and Gillard governments we had started to change the culture and this legislation now before the chamber is a change in the changing of that culture of openness and we will be all the poorer as a democracy for it—that is why we are opposing this legislation.

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