Helen Haines (Indi, Independent) Share this | Hansard source

I rise to speak on the Freedom of Information Amendment Bill 2025. Frankly, I thought the member for Moore was looking me deep in the eye here and trying to convince me of the greatness of this piece of legislation. I am sorry to tell him this is not a bill I would wish to try to defend. While aspirations he speaks to are honourable, this bill simply does not deliver them.

The right to access government information is an indispensable feature of our democracy. It is key check and balance on the executive, on the Public Service, and it is a protection against bad government. It is living proof of the democ in democracy—meaning the people. In Australia, the government should not sit above the people but with them. So I was rather amused at that explanation of the changing of the objectives of this act because it simply is not true.

Our freedom-of-information system is underpinned by the belief that every citizen, every member of our community, has the right to access information about the decisions that governments make. To trade this away is to trade away a great Australian democratic pillar as important as compulsory voting or the independent Electoral Commission. We don't have to look far to see what can happen when governments, even those elected democratically, begin to wind back and dismantle democratic institutions.

Of course, there are genuine limitations to the right to access government documents, limitations that are clearly laid out in the existing FOI Act, limitations that many say go too far. The Australian Press Council points out:

Broadly defined exemptions for Cabinet documents, deliberative processes, national security, and "commercial-in-confidence" have historically been applied far beyond their original intent.

The reality is that most FOI documents contain significant redaction, sometimes comprising the majority of the document, and that's if the document is released at all. In recent years, for the first time ever, the number of FOI requests refused was higher than the number of requests fully granted. In the past 10 years, the refusal rate has doubled. FOI expert Maria O'Sullivan from Deakin University notes that, while there is real need for reform of the act, this bill 'severely threatens government transparency' and 'is not the way to do it'.

Unfortunately, there is more bad than good in this bill. Using some much-needed and important reforms as cover, this government seeks to implement sweeping restrictions and carve-outs under the guise of 'modernisation'. It shifts the entire purpose of the FOI system from 'pro-disclosure' to 'maybe-disclosure'. Passed unamended, this bill would represent a significant retrogression of transparency and accountability in Australia's federal system of government. It would be a direct repudiation of the Australian voters' wishes. They didn't vote for secrecy; they voted for transparency. This bill has no friends outside the walls of government. It should be abandoned, frankly. It is desperate and, honestly, it was dateless until it popped its way onto the Notice Paper and weaselled its way into the Federation Chamber today.

I will now explain what the bill does and why I am so concerned about it. The government has said that its intention is:

… to modernise the Freedom of Information framework, reduce system inefficiencies, address abuses of process, and clarify the operation of certain provisions and exemptions within the FOI Act.

This bill makes around 30 amendments. Several are uncontroversial and would simply streamline certain processes for the benefit of both the government and the public. I have no argument with some of these positive changes, including: clarifying that personal information of public servants is not FOI-able other than in certain circumstances; preventing concurrent agency and Information Commissioner reviews of FOI refusals; more clearly defining that timeframes apply to working days only; expanding the powers of the Information Commissioner to delegate decisions while ensuring that important decisions continue to be made by the commissioner or senior officers; and clarifying that, when a minister ceases to hold that ministerial office, the relevant agency can handle future FOI request relating to the minister's time in office. I welcome these changes and recognise that the FOI system, like all systems, needs to remain fit for purpose.

When I'm assessing legislation, I look for the good, but I ask key questions. The first is: what is the problem we are trying to solve here and what is the change we are trying to make? Secondly, I ask whether the proposed legislative response is an appropriate response to that challenge. I ask: will it actually fix the problem? Thirdly, I ask whether the proposed legislation is good governance. Is it ethical? Is it fair? Will it have unintended consequences for some groups of people?

Unfortunately, I find that, despite some positive measures, key parts of this bill fails on all three of those questions. This bill will not deliver on its goal and will instead make the FOI system more secretive and harder to access and will shift more government decision-making out of the public line of sight. Rather than addressing abuses of process, it could in fact lead to more abuses of process—not by people making requests for information, but by government agencies and departments.

First, the bill changes the purposes of the entire FOI Act. It shifts the FOI system from one that is pro-disclosure to one that balances disclosure against the interests of the government, departments and ministers. This is highly concerning, and has been widely criticised by organisations such as the Human Rights Law Centre. The Law Council of Australia says the 'the alteration to the objects of the FOI Act alters the presumptive right to information, replacing that with a discretion that promotes economic factors into decision-making'. The Centre for Public Integrity says this bill 'takes the Australian freedom of information regime in a more secret direction'.

Second is the proposal to prohibit anonymous requests, which are vital for investigative journalists or whistleblowers seeking to reveal government malfeasance. The government says that it must ban anonymous requests to stop the deluge of request being made by bots, foreign actors and trolls. Well, if this really were the case, I would be more inclined to agree. But here's the rub: the government hasn't provided evidence of persistent spam or malicious requests. All it can provide is a handful of cherry picked examples. Now, if the government insists on such a drastic and draconian reform to the FOI system, surely it must provide the evidence base—and it simply hasn't.

I have no doubt that there are vexations applicants, and, indeed, there will be serial spammers. New provisions in the bill to deal with vexatious and frivolous requests appear sufficient to deal with troublemakers in a more limited and restrained way. It's why I can't support an unjustified move to remove every Australian's right to make an anonymous request, and the chilling effect this would have on investigative public interest journalism in this country—something that so many of us deeply rely on.

Similarly, provisions to create application fees appear to be nothing more than a new barrier to access. Fee for access is contrary to the right to access information, and that it's likely to cost more to administer than it will ever raise in revenue. The government points to state and territory frameworks that charge fees, but this simply isn't sufficient reason. A fee system will simply create new barriers for people with little disposable income to access the FOI system and make it more likely that they will decide against accessing or pursuing information.

Provisions for financial hardship and exemptions for personal information make a bad measure slightly less bad, but the fact remains that this government has made no compelling argument on why fees are actually necessary in the first place.

But perhaps the most egregious changes are those to cabinet document exemptions. Already it's incredibly difficult to access any document that has gone anywhere near the cabinet room. Government often fights tooth and nail in the courts to fight against release of these documents, but now they want to go further, making it virtually impossible to know how and why cabinet ministers are making the most important decisions affecting our country. Under this bill, anything considered or even simply noted in the cabinet process will be exempt, rather than the previous definition that referred specifically 'to deliberation and decision-making'. This is very concerning. Similarly, to be exempt under this bill a document need only have the substantive purpose of informing a minister in relation to an issue to be considered by cabinet. So this means, remarkably, that the document need not actually go the cabinet, but simply inform a minister in relation to an issue that cabinet will consider. Frankly, it's hard to imagine anything this couldn't include.

This will make cabinet documents even more secretive, directly contravening the recommendations of the robodebt royal commission. Just today, the Centre for Public Integrity said that it is misleading to suggest that this bill simply clarifies the existing cabinet exemptions. In contrast, it's the accepted legal view of the Law Council of Australia and others that these amendments will substantially broaden the cabinet exemption in highly concerning ways. And for a government that said 'never again' to robodebt, this certainly doesn't inspire confidence.

I'm not convinced that this bill can be reformed, so deep and broad are the issues that I, along with many of my parliamentary colleagues, the community and civil society, have raised. However, I always seek to come to this place not only with problems but with solutions, so I sought to look at this bill and make some good-faith suggestions to improve it. Several sections simply can't be fixed, and I've suggested they be repealed in their entirety. I hope members of the coalition, who seem to be saying they're not in favour of this bill either, will support these amendments. I moved amendments to repeal the section that creates application fees for FOI requests, as I previously stated. The government has failed to make the case for why these amendments are necessary, and it has not sufficiently justified that application fees won't deter many people from making an application in the first place.

I've also circulated amendments to repeal parts 1 and 2 of schedule 7. Part 1 would enable decision-makers to refuse a request when it would be clearly exempt under the relevant section of the act. There would be no need to check whether it's actually an exempt document. Simply believing it is exempt will be enough to refuse a request. I know this name is triggering for the government, but I'm going to say it anyway: as former senator Rex Patrick said, these provisions are ripe for misuse, and I agree. While you can appeal, most people will simply give up. Part 2 expands cabinet exemptions. I seek to repeal this section entirely, and, as I said before, this contradicts a key recommendation of the robodebt royal commission and will reinforce the culture of cabinet secrecy that allowed robodebt to persist for so long. While these exemptions remain, there is no chance that I can support this bill.

The government has said this bill would be debated in future sitting weeks. It wasn't on the original program and only appeared last night. Up until then, it was desperate and dateless. But it appeared as an item of business today here in the Federation Chamber. These changes are so significant that this debate should be happening in the House of Representatives where all eyes are on it.

In summary, I will not be supporting this bill, and I implore the government to withdraw it. I call on all good and fair-minded members of the government to ask whether this is really a bill they can support and whether this is a bill their constituents would support. Is this a bill you can defend? Is this a bill you can be proud of? When we return to our communities this weekend, what will we say when asked how we voted on a proposal to make government more secretive and less accountable to the Australian people?

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