Michelle Rowland (Greenway, Australian Labor Party, Attorney-General) Share this | Hansard source

I move:

That this bill be now read a second time.

An effective freedom-of-information system is critical in fostering public trust in government decision-making through transparency and access to information.

It enables citizens to understand more about why and how government decisions are made and, with that knowledge, participate more effectively in Australia's civic and democratic processes.

The freedom-of-information framework also importantly provides for individuals to seek access to their personal information held by government.

The Freedom of Information Act 1982 was established over 40 years ago, before the common use of electronic documents, digital communications and records in the workplace.

The rate and volume of electronic records generated today by public sector agencies would have been unimaginable when the Freedom of Information Act was first introduced.

For example, the Department of Home Affairs's record holdings are approaching one billion records, in its primary record-keeping system alone.

$86.2 million was spent processing freedom-of-information requests in 2023-24, a 23 per cent increase on the year prior.

The administrative impost of processing large and complex requests, or treating vexatious and frivolous requests with the same procedural rigour, can divert resources and risks inhibiting agencies from providing important and essential government services and delivering on reform priorities that would benefit all Australians.

The diversion of resources also means more genuine freedom-of-information requests and requests for access to personal information cannot be as readily prioritised.

In 2023-2024 alone, public servants spent more than one million hours processing freedom-of-information requests.

This is in part due to technology enabling large volumes of vexatious, abusive and frivolous requests—tying up resources, costing taxpayers money and delaying genuine requests. There is no reason to believe that this problem will not grow worse over time, particularly given the advancing capabilities of artificial intelligence.

The ability for freedom-of-information requests to be lodged anonymously also risks undermining the integrity of the framework, and, in combination with new technology, creates risk vectors that could be exploited by offshore actors seeking government-held information for potentially nefarious purposes.

There are also a range of complex procedural and technical rules in the Freedom of Information Act that are undermining the efficiency of the system, without any corresponding benefit to freedom-of-information applicants, the Australian people or Australia's democracy.

This bill aims to strengthen the freedom of information framework to address identified shortcomings in its operation, while ensuring government continues to provide access to information consistent with the original policy intent of the act.

The purpose of this bill is to ensure the system is fit for purpose in 2025 and beyond—by upholding and promoting the core democratic principles that underpin freedom of information laws while, at the same time, addressing the issues that, in practice, undermine a more effective and balanced FOI framework.

The b ill

This bill amends the Freedom of Information Act 1982 to reflect the modern environment. It will improve the freedom of information framework through reducing system inefficiencies, providing clarity of the law, and addressing abuse of processes that impact on people's right to access information.

The bill implements a number of recommendations of the 2013 Review of the Freedom of Information Act 1982andthe Australian Information Commissioner Act 2010 (also known as the 2013 Hawke review), which concerned, among other things, how to make the system more effective.

The bill also makes consequential amendments to the Australian Information Commissioner Act 2010 and the Public Interest Disclosure Act 2013 to support the changes to the Freedom of Information Act.

Schedule 1— s cope and objects

Schedule 1 of the bill makes foundational and definitional changes to ensure the Freedom of Information Act promotes both accountable and effective government, and to clarify the scope of requests for documents of an agency—including through minor amendments to the objects provision and ensuring that information on agency systems that concerns purely personal and non-work related matters of staff are not captured in the definition of a 'document of an agency'.

Schedule 2— a ccess requests

Schedule 2 of the bill makes amendments to streamline processes relating to access requests and to address abuse of the freedom of information system by vexatious and anonymous applicants. Amendments in this schedule include provisions that:

Schedule 3—practical refusals

The act currently enables an agency or minister to refuse a request if a 'practical refusal reason' exists, such as where a request does not sufficiently identify the requested documents, or would cause a substantial and unreasonable diversion of resources.

Schedule 3 of the bill makes amendments relating to the practical refusal mechanisms. The provisions clarify the status of Information Commissioner reviews involving practical refusal decisions and implement a recommendation of the Hawke review by introducing a discretionary 40-hour processing cap for freedom of information requests. This reflects that there needs to be an appropriate balance between an applicant's access rights and taxpayers' resources in providing such access.

Schedule 4—requests and review processes

Schedule 4 of the bill makes amendments to streamline agency and Information Commissioner review and extension of time processes, and clarify the outcome of a freedom of information request decision made out of time. The amendments will:

Schedule 5—Information Commissioner reviews and complaints

Schedule 5 of the bill makes amendments relating to Information Commissioner reviews and complaints to create administrative efficiencies for the Office of the Australian Information Commissioner. The amendments:

Schedule 6— a pplication fees

The government has carefully considered options on how to deter frivolous and vexatious requests, while maximising accessibility of the system for genuine applicants.

All other Australian jurisdictions, apart from the Australian Capital Territory, have initial application fees for freedom-of-information requests.

This measure will aid in deterring frivolous requests, and ensure agency resources are not unduly diverted from processing genuine requests, particularly requests for personal information which account for the vast majority of overall requests.

Schedule 6 of the bill will enable a fee to be specified in the regulations for freedom-of-information requests, internal reviews and Information Commissioner reviews.

The government recognises the primacy of Australians having access to their personal information held by government. For this reason, an application fee would not apply to requests by an applicant for access to their own personal information, or an individual acting on behalf, and with the authority of, another individual for access to their personal information. FOI requests for personal information comprised 72 per cent of overall FOI requests in 2023-24. On these figures, up to three in four freedom-of-information requests would be exempt from any application fee. There will be an ability to waive fees in certain circumstances, including in cases of financial hardship.

Schedule 7— e xemptions

On introducing the Freedom of Information Act in 1981 under the Fraser government, Senator Durack told the parliament that 'the general right of access' to information 'must, of course, be limited' for the 'protection of essential public interests'.

Schedule 7 of the bill clarifies the operation of important exemptions in the act consistent with the original policy intent to promote efficient handling of requests, including by:

To address a concern raised in the 2023 Royal commission into the robodebt scheme report, the amendments would also make it absolutely clear: merely labelling something a cabinet document is not enough to make it a cabinet document.

Schedule 8— o fficial d ocuments of a m inister

There has been a longstanding convention that new ministers should not make decisions on access to information relating to former ministers.

Schedule 8 of the bill responds to a recent Federal Court decision by creating a practical, workable process for outgoing ministers to facilitate access to information—while ensuring that, consistent with convention, new, incoming governments should not have access to policy and similar advice of the previous, outgoing government.

The amendments make provision for the treatment of freedom-of-information requests and review proceedings in circumstances where a minister ceases to hold office or moves to a new portfolio.

Conclusion

This bill provides important updates to the Commonwealth's freedom-of-information framework, with a focus on modernisation, reducing system inefficiencies and addressing abuse of processes that impact on people's right to access information.

It recognises the importance of a well-functioning system of information access, balanced with an efficient and effective government.

I commend the bill to the House.

Debate adjourned.

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