Claire Clutterham (Sturt, Australian Labor Party) Share this | Hansard source

Freedom of Information is an essential part of any democracy. The public must have a clearly defined legal right to access information held by the government, and the process to access that information must be transparent and easy to use. Scrutiny, review, measurement, testing, debating of government actions and decisions—there are many words that can be used, but these things must be protected. Openness must be practised, and public participation in that practice must be easily facilitated. Individual members of the public must also be able to easily access information about themselves that is held by the government, in order to have knowledge of what that information is but also to be able to change it, add to it or correct it as required. First and foremost, however, empowering the public to hold the government to account is fundamental.

This openness and accessibility must, however, be balanced with a number of factors, including confidentiality and sensitivity of certain information, and balanced against the allocation of available resources to properly deal with requests for information made by the public. Vital to a healthy and well-functioning democracy, a fundamental aspect of the rule of law, crucial to ensuring government transparency and accountability, and essential to enabling the public to participate in and scrutinise government decision-making, this balance is part of a well-functioning freedom of information system. The Freedom of Information Amendment Bill 2025 would amend the Freedom of Information Act 1982 to improve the operation of 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.

Prior to being elected to federal parliament, I was a practising lawyer for 20 years. I held a number of different roles around the world, and in Australia, in private practice and in-house for companies and government business enterprises. In one of my more recent in-house roles before parliament, the responsibility of addressing third-party freedom of information requests received from members of the public fell to me. So I can attest firsthand to just how complicated it can be to properly and fairly respond to a freedom of information request, particularly with respect to section 47C and its coverage of material falling under the umbrella of deliberative processes and also with respect to section 11B and its, frankly, currently inadequate description of the public interest disclosure test. Clarity in this respect is long overdue. In another recent role prior to parliament, I was a partner in a law firm where we represented certain government clients. Clarity over what information qualifies for the cabinet exemption is long overdue.

I can also attest firsthand to the time that it takes to address freedom of information requests, which, often, when I received them, amounted to nothing more than an exercise in exploration, usually off the back of an ill-informed sound bite floating around the internet. Sometimes it took weeks to respond to these sorts of requests because, when you get one, you want to address it properly. It's not just a case of responding; it's a case of searching through reams and reams of electronic data in order to locate documentation that might possibly be responsive to an overly broad request which is often lacking in any temporal limitation. The rate and volume of electronic records generated today by public sector agencies would have been almost unimaginable when the Freedom of Information Act was first introduced some 40 years ago.

For legal practitioners and members of the Public Service who work tirelessly to advise on freedom of information legislation and respond to requests in the spirit of transparency and integrity, the amendments proposed by this bill will simplify matters considerably. The public will have greater clarity over the process by which they can make freedom of information requests and how they are dealt with and greater clarity over what is exempt from disclosure and what is not and, most importantly, why that is so. Importantly, through the implementation of a small fee, which is already replicated across most states and territories in this country, the public will have it reinforced that freedom of information is critical but also a two-way street. Governments should be held accountable and the public should have access to information and the ability to easily request that information, but government resources—being time and taxpayer money—should not be tied up addressing vexatious and speculative freedom of information requests that have no basis other than in rumour, misinformation or innuendo.

In terms of a critical feature of this bill, it will operate to clarify the public interest test as it relates to matter covered under the deliberative process. Section 47C of the Freedom of Information Act operates to provide that a document is conditionally exempt—not exempt but conditionally exempt—if its disclosure under the act would disclose deliberative matter, which is matter in the nature of or relating to opinion, advice or recommendation obtained, prepared or recorded, or consultation or deliberation which has taken place in the course of or for the purposes of the deliberative processes involved in the functions of an agency or a minister or government of the Commonwealth.

What ultimately happens to a document that section 47C may have relevance to is a three-stage process. Firstly, the decision-maker must be satisfied that the information in question does actually involve deliberative matter. Then, the decision-maker must ascertain whether the information was obtained and the purpose for which it was prepared, and how it has been documented or recorded—was there a deliberative process involving the exercise of judgement and the weighing-up and evaluation of competing arguments and considerations? Those are the first two stages. Then, finally, the decision-maker must also be satisfied that the information relates to a deliberative function and that that function was or was intended to be exercised by an agency, a minister or the Commonwealth government. It's not a free pass; the information must pass all three stages in order to determine that it is deliberative matter. Then, and only then, a conditional exemption from disclosure applies. That conditional exemption is then further examined. It's either crystallised or removed subject to the public interest test, as set out in section 11B of the act. This section applies for the purposes of working out whether access to a conditionally exempt document would, on balance, be contrary to the public interest.

Currently, section 11B lists the factors that favour access or, in other words, that favour the lifting of the conditional exemption. These include whether access to the document would do any of the following: promote the object of the act; inform debate on a matter of public importance; promote effective oversight of public expenditure; or allow a person to access his or her own personal information. There are no proposed changes to this

Equally and very importantly, there are no proposed changes to section 11B(4), which sets out factors that are not to be taken into consideration in determining whether access to the document would, on balance, be contrary to the public interest. The first matter—and this is important as we have heard suggestions to the contrary today—that is not to be taken into account is whether access to the document could result in embarrassment to the Commonwealth government or cause a loss of confidence in the Commonwealth government. These things do not matter for the purposes of the act. They are irrelevant in determining whether access to the document is in the public interest. This regime exists in the act and it is not changing.

Also irrelevant is whether access to the document could result in any person misinterpreting or misunderstanding the document or whether the author of the document was, or still is, of high seniority in the agency to which the request for access to the document was made. The final factor that is irrelevant to the public interest consideration is whether access to the document could result in confusion or unnecessary debate. Article 11B(4) is critical, and I encourage everyone to read it. It is remaining and is not proposed to be amended by this bill.

The act currently explains the factors in favour of disclosure and the factors that are irrelevant. What it does not do currently is set out the factors against disclosure. All this bill proposes to do is clarify those actions. They include whether access would prejudice the frank or timely provision of advice to or by an agency or minister and whether it would prejudice the orderly and effective conduct of a government decision-making process. The chamber will note that the list of those factors is neither extensive nor arbitrary and that they would apply in very limited circumstances.

We have heard a lot today about the cabinet exemption, which is also being amended to clarify its operation. Firstly, it will be amended to clarify that merely labelling a document as a cabinet document is not enough to make it a cabinet document. The amendments proposed by the bill in this respect ensure that information central to the cabinet process is appropriately protected and ensure that the principle of collective ministerial responsibility is not undermined, noting that this principle is crucial to ensuring that full and frank debate can take place within cabinet. The act currently does not contain scope to apply the public interest test to the cabinet exemption, and the bill does not propose to introduce this. The public interest is implicit in the purpose of the exemption itself. We have heard today that it will be enough to mark a document 'cabinet' to qualify for the exemption. This is not correct. There still remains a test for whether a cabinet document is exempt, and that test is the substantive purpose test. In order to qualify for the exemption, the substantive purpose of the document must be for cabinet processes. Simply labelling it as a cabinet submission on the face of the document will not make it qualify, and any suggestion to the contrary is incorrect.

The amendments proposed by the bill also propose to improve transparency by removing the ability to make anonymous requests. Together with the implementation of the reasonable fee, which, importantly, does not relate to requests that individual Australians make in relation to their own personal information, the requirement for an applicant to faithfully identify themselves is again designed to reduce the number of vexatious and ill-motivated requests that the Australian Public Service and other relevant third parties have to spend countless hours and taxpayer money dealing with.

It's also quite obviously very important for there to be transparency about who is asking for information. Risks to national security may arise if requesters can make requests for information anonymously. And national security risks can only be identified and managed with information. These changes do not inhibit the provision of information to those who have genuine reasons to access information. This is not changing. But the increase in freedom of information processing costs to agencies is increasing to unsustainable levels. In the 2023-24 financial year, agencies spent $86.24 million and one million hours addressing 34,000 freedom of information requests, some of which were maliciously used to attempt to disrupt business or to make abusive, excessive or threatening contact with public servants. There are not inexhaustible government resources available to process large and complex requests, or to have processed requests that are abusive to people and abuse government processes.

The fee for access, which I again stress does not apply to personal information, is not, as has been described, a 'truth tax'. It's not that. It's designed to reduce the number of vexatious requests that are made each year, and that detract from those with credible, genuine requests from having those requests addressed promptly.

The bill provides important clarity to how and when information can be accessed. It addresses the oft-used abuses of process that impact on people's right to access information, and demonstrates the importance of a highly functioning and transparent system of information access balanced with an efficient and effective government and balanced with the public interest. I commend the bill to the House.

See this speech in context