Sophie Scamps (Mackellar, Independent) Share this | Hansard source

Freedom of information is one of the key pillars of a democracy. It should ensure that people have access to the information they need to understand the decisions and actions of their government. Australia has a proud history as a world leader in freedom of information, having introduced a comprehensive federal FOI scheme in 1982, as part of the new administrative law reforms, and then undertaken a major overhaul of the scheme in 2010, under the leadership of Senator John Faulkner, to promote a greater culture of disclosure. Unfortunately, the Freedom of Information Amendment Bill 2025 does not continue this leadership. This bill reduces government transparency and takes our public services in a more secretive direction. Both of these outcomes would undermine our democracy. Here we are, with the bill having been relegated to the Federation Chamber by a government who clearly wants to ram these changes through without adequate time for scrutiny and consideration and without the level of debate they deserve.

Certainly, Australia's FOI system needs an overhaul. You'd be hard pressed to find someone who disagrees with that. Indeed, in December 2023, the Senate Legal and Constitutional Affairs References Committee described the system as broken and unfit for purpose. In July this year, the Centre for Public Integrity released analysis of the operation of the FOI system. It revealed a system that is underresourced, riddled with delays and concerning indications of the abuse of exemptions. And the Australia Institute has found that only 21 per cent of FOI requests in financial year 2023 were granted in full compared to 81 per cent in 2006. Where the average request took 13 hours to determine in 2006-7, it took 51 hours in 2023-24. In other words, the government employs four public servants to do what only took one public servant under the Howard government. Clearly, the system needs fixing, but the government's bill takes the system in the wrong direction.

Under the guise of responding to alleged abuse of the system by technology, the government is attempting to fundamentally shift the FOI culture away from disclosure, undermining many of the important reforms introduced in 2010. The government has framed this bill as a crackdown on 'abusive and frivolous' FOIs, but where is the evidence of this abuse by technology? Requests for the government's evidence for these proposed freedom of information request restrictions have repeatedly gone unanswered. During Senate estimates, the Attorney-General's Department was unable to produce any material evidence of malicious actors or automated requests, and in response to an order for the production of documents in the Senate, requesting evidence of claims that vexatious requests under the Freedom of Information Act 1982 are being generated by artificial intelligence or other non-human actors, the Attorney-General provided two US media reports and a list of talking points. This is hardly conclusive evidence.

Among the bill's most concerning features are these: the expansion of the 'cabinet document' exemption; the expansion of the 'deliberative processes' exemption, through the addition of a list of 'factors against giving access'; the reintroduction of application fees for FOI requests; and the removal of the ability for an FOI applicant to remain anonymous or use a pseudonym.

First, I want to turn to the expansion of the absolute exemption for cabinet confidentiality. This is an existing exemption that we know governments rely on to resist applications. Indeed, the government relied on cabinet confidentiality to refuse to deliver to the Senate the documents that provide evidence of the vexatious and AI-generated applications that it claims it is responding to in the bill. Recently, I had my own FOI request for the final report from the review of public sector board appointments processes denied on the basis of cabinet confidentiality. The bill will broaden that exemption. It proposes that a document will be exempt if 'a substantial purpose for its preparation was submission for consideration by the cabinet.' This will effectively broaden the amount of material able to be denied.

The government is expanding this exemption, despite the royal commission into robodebt finding that cabinet secrecy enabled the abuse of power to continue. Specifically, the commission found that, while the minister failed to meet his responsibility to properly inform cabinet, it was senior public servants who provided advice to cabinet that did not contain a reference to the concerns regarding income averaging and the need for legislative change. In relation to the cabinet exemption, Commissioner the Hon. Catherine Holmes AC did not merely recommend tinkering with the exemption; she recommended its complete repeal:

… the Government should end the blanket approach to confidentiality of Cabinet documents. To give effect to this, section 34 of the FOI Act should be repealed. The wide range of class and conditional exemptions in the FOI Act is sufficient to protect the public interest in relation to Cabinet documents.

She continued:

The mere fact that a document is a Cabinet document should not, by itself, be regarded as justifying maintenance of its secrecy.

But what we have here, under the cover of the robodebt royal commission, is the government extending the cabinet document exemption and extending it to briefing documents, summaries or any reference to the contents of a document to which an exemption applies—a massive expansion of this exemption.

Next, the bill expands the conditional exemption for documents that would reveal the deliberative processes of government. It does this by adding a new list of 'factors against giving access' in addition to the current 'factors favouring access' and 'irrelevant factors'. This list of factors against giving access to a document in the public interest includes whether 'giving access to the document would or could reasonably be expected to have' any of the following effects, including prejudicing the 'orderly and effective conduct of a government decision-making process.' In the words of former Public Service Commissioner Andrew Podger, this 'could be used to refuse access to almost any document'.

In expanding the deliberative process exemption, the government is relying on the 2015 Shergold review and the 2019 Thodey review, which including anecdotes from public servants that their advice is chilled by the possibility of disclosure under the FOI regime and recommended the widening of the deliberative process exemption. However, the chilling effect is far from conclusive. Andrew Podger, the former commissioner for the Public Service, has said:

… other factors than FOI are contributing to failures to provide frank and fearless advice.

One clearly accepted by the royal commission is the process for appointing (and terminating) departmental secretaries and the role and appointment process of the APS Commissioner.

He went on to say:

The FOI Act may be contributing … but the evidence is far from clear.

More likely is pressure from ministers and ministerial advisers exaggerating the political dangers, and a public service overly responsive to the government and failing to meet their obligations to serve the Parliament and the Australian public.

The Auditor-General, Caralee McLiesh, also recently highlighted the costs associated with lack of transparency in the public sector, stating:

A lack of transparency means it is harder for people to understand government activity, obtain information to make decisions, and participate more fully in public life. It weakens accountability in a system that lacks other accountability mechanisms …

Such accountability mechanisms include market competition. A proactive approach to publishing much more information would reduce a lot of the administrative burden of FOI requests. Additionally, former commissioner Podger has recommended that firm limits on political involvement would ensure a more appropriate system of rewards and penalties for senior public servants. It is not hard to imagine that this would allow a greater scope for the provision of frank and fearless advice.

Next, this bill reintroduces application fields that were abolished in 2010 as part of the opening up of government and removes the ability to make anonymous requests. The government argues that these changes are needed to deal with the volume of requests—in particular, vexatious or AI generated requests—but, again, the evidence is minimal. If the government is asking the parliament to restrict democratic rights, at the very least it needs to produce evidence that would justify this. There is also no evidence that the government has considered alternative ways of addressing these matters that won't dissuade legitimate FOI applicants, particularly those from poorer or more vulnerable applicants, including potential future whistleblowers. The government is worried about the chilling effect of FOI on government decision-makers, but shows no concern for the chilling effect of these amendments on legitimate applicants.

As an example of the legislative process, the bill represents an affront to good lawmaking. There has been no proper consultation on such an important piece of legislation. The government itself admits that it is relying on previous reviews—in particular, the statutory FOI Act review conducted by Allan Hawke back in 2013, over a decade ago. The idea that we can modernise Australia's FOI system by relying on recommendations from a 2013 review is hard to believe, but, worse, the government has cherrypicked the recommendations from that review. The primary recommendation of the 2013 review that it is now relying on to push through amendments was to undertake a comprehensive review of the FOI system.

The government is also silent on the recommendations of both the 2015 Shergold review and 2019 Thodey review into the Public Service that further reviews be conducted into FOI system. And what about the other recommendations in those reviews about strengthening the independence and culture of the Public Service, including, for instance, the Thodey review recommendations to strengthen the processes of appointment and removal of departmental secretaries? They have conveniently failed to mention that the Hawke review did not recommend expanding the deliberative processes exemption and expressly rejected the claim that FOI would chill the delivery of what is a legal obligation on public servants to give frank and fearless advice.

Australia's FOI system is a pillar of our democracy. It certainly needs repair, but this bill is not fit for purpose and I cannot, in all good faith, support it. The government should withdraw this bill and set up an independent comprehensive review of the system that modernises it in a way that works for, and not against, our democracy.

See this speech in context