Monique Ryan (Kooyong, Independent) Share this | Hansard source

It's 43 years since the initial freedom of information legislation was enacted in this place. It was at that time a significant achievement—a strengthening of our democratic process. Sadly, that achievement is undermined by the legislation which is now before the House.

The FOI Act enshrines the right to access information. It protects individuals' rights by providing them with access to information about them held by the government. It protects the public interest by providing transparency of government expenditure around government activity and government decision-making. Over time, we have seen a number of governments wanting to prioritise efficiency over transparency but that's a concern for public integrity and it is a concern for the democratic process. Those concerns were noted by now Prime Minister Anthony Albanese when he said in 2009 that we needed to reform our freedom of information laws so they could not be flouted by government. Indeed, prior to the 2022 election, the ALP said that Labor intended to make government more open, more accountable. They said they intended to strengthen freedom of information laws, and to foster compliance with them throughout the government.

Sadly, the bill now before the House reflects a government which is actively seeking to limit the public's access to information about its administration. The government was returned this year with a massive majority yet it lacks clarity of purpose, integrity of action, and a real commitment to transparency and openness. Labor's proposed freedom of information changes are a direct reversal of the reforms Labor itself introduced in 2009. One wonders what John Faulkner would think of them.

It is true that the freedom of information system is experienced by most who engage with it as being slow and frustrating. Departments are under resourced, and they often use unreasonable and unnecessarily obstructionist tactics, which result in frustrating delays and backlogs. As Crikey described in its recent submission to the Senate inquiry on the bill, those tactics create a feeling of 'administrative torture so unfathomable as to be undemocratic'. The government has claimed it has been forced to address a flood of frivolous vexatious and AI-generated requests. Its response to these is to restrict FOI access to all Australians by prohibiting anonymous applications. The rationale for these changes was the purported involvement of foreign actors, but the government has failed to provide evidence supporting those claims. The government claimed that foreign adversaries are using FOI to obtain information in a way that could be contrary to our national interest. But FOIs reveal information that should be public, and they cannot force the government to release anything that would be inappropriate for the public to know. So in the absence of any evidence that foreign actors are actually submitting vexatious requests, we have to suspect this claim is speculative. The prohibition of anonymous applications could have a chilling impact on vulnerable individuals, potentially whistleblowers, and others who may fear retaliation for very legitimate reasons.

The bill also reintroduces fees to lodge a request, excluding those for personal information. FOI application fees were abolished in 2010 when then Australian Information Commissioner John McMillan argued this was a part of making public requests for documents, and that FOI requests should be more routine and accepted part of the daily business of government agencies. In 2013 the Hawk review explicitly recommended application fees for FOI requests not be restored. The Attorney-General has failed to provide any reason why this should happen. Again, these fees could block access to FOIs and to transparent government by the most vulnerable. They are an unjustified nuisance tax by what has become an arrogant administration.

The bill also creates a means of refusal of requests for information, a practical reason to justify refusals if the work involved in processing the request is felt likely to substantially and unreasonably divert the resources of the agency from its other operations, or, in the case of a minister, would interfere with the performance of the minister's function. These are somewhat nebulous and undefined reasons for refusal and they are clearly going to be open to abuse.

The robodebt royal commission gave rise to grave concerns regarding abuse of cabinet confidentiality exemptions. Robodebt was an unlawful scheme. It caused immeasurable injury. Its authors knew that that was the case, but they deliberately, dishonestly and immorally acted to conceal that knowledge. The robodebt royal commission found that documents related to robodebt were deliberately marked 'cabinet-in-confidence' to ensure that they were not released. In her report around the matter, the royal commissioner noted that the deception at the heart of robodebt would have been discovered much sooner had those cabinet documents been available to the public and to the media through FOIs. She recommended that the relevant section of the FOI Act be repealed and that the description of a document as a cabinet document should no longer be in and of itself justification for maintaining the confidentiality of that document. She suggested that confidentiality should only be maintained over cabinet documents, or parts of cabinet documents, where it can be reasonably justified for an identifiable public interest reason.

But, instead, the Attorney-General proposes the very opposite. Instead of repealing the confidentiality exemption, this bill expands that exemption. No longer does a document have to be for the 'dominant' purpose of going to cabinet; it is enough if it is for a 'substantial' purpose. So documents which might be prepared to brief ministers on issues which might come up in cabinet would be included, and so would consultants' reports and other attachments to cabinet submissions. This, again, is directly in opposition to John Faulkner's establishment of the dominant purpose test in 2009. This administration is demonstrating regression on the standards set by previous Labor governments.

But by far the most egregious part of the bill—the attempt to draw the curtains, turn off the lights and hide behind the couch—is the insertion of a public interest test. This would allow ministers to block the release of documents if they determine that such is not in the public interest. One basis for the test is suggested to be that such disclosure would or could be reasonably expected to prejudice the frank or timely discussion of matters or exchange of opinions between participants in deliberative processes of government. This clause reflects the claim that FOI can impede the ability of senior public servants to provide frank and fearless advice to ministers. Revisiting the past yet again, I invoke the 2013 Hawke review, which agreed with the former Commonwealth Ombudsman John Wood that officials should be happy to publicly defend any advice they give to ministers and that, if they are not happy to do so, they should perhaps rethink that advice.

Insertion of a public interest test at the same time that this government has expanded the capacity for national interest approvals via the Environment Protection and Biodiversity Conservation Act presents the Australian public with the extraordinary possibility that this government could approve massive new fossil fuel projects, highly polluting critical minerals projects or rare earth mines and then deny to the public any information or any rationale relating to the basis of those approvals. It is confounding that this government proposes to be so evasive and so circuitous. If the government's decisions are lawful, sound, based on the best possible advice and in the public interest and, indeed, the national interest, why be so coy? Get out there and share it with the people.

I put it to the government that concerns regarding frank, fearless and timely advice from public servants are not best addressed by increasing secrecy, that it should proactively publish information as requested and needed by our constituents, that the principle of proactive disclosure underpins a confident and effective democracy and that a core democratic principle is accountability by the government to the people that it serves. On those grounds, I cannot support this legislation.

See this speech in context