Kate Chaney (Curtin, Independent) Share this | Hansard source

Freedom of information, or FOI, is a cornerstone of our democracy. It's how we hold government to account. But the FOI system has room for improvement. There are arguments to reduce disclosure of information. It creates a lot of work for the public service. Anecdotally, it's full of vexatious and voluminous requests. Public servants are increasingly reluctant to write things down for fear of having their documents FOI'd. This bill addresses these problems by reducing disclosure, expanding cabinet confidentiality, limiting anonymous requests, adding new grounds to reject applications and introducing application fees.

But there are also reasons to increase disclosure. Requests can take far too long to be answered. The proportion of FOI requests granted in full has dropped from 59 per cent in 2012 to just 25 per cent in 2024. There have been findings that the system is driving a culture of secrecy, a lack of ministerial engagement and inconsistent exemptions. Journalists and legal advocates report administrative torture, with excessive redactions and delays that compromise public interest reporting. These really crucial problems, requiring greater transparency, are not addressed in this bill.

That's why every major review that has touched on the FOI system has called for a comprehensive, independent review of the whole FOI Act. That's what we need before we make any significant changes. As we watch democratic institutions crumble in the United States, now is the time to safeguard our institutions of transparency and accountability, not undermine them. I want to run through why the FOI system is important, the current problems with the system, why this bill is not the answer and the arguments for an independent review.

The FOI Act was introduced in 1982 with a clear purpose: to open up government, to shift the default from secrecy to transparency and to ensure that decisions made in the name of the public are visible to the public. It has generally worked. Over the years, FOI requests have revealed waste, mismanagement and corruption. They have informed journalism, empowered whistleblowers and strengthened public debate. Perhaps the most powerful recent example is the robodebt scandal. It was FOI requests that helped uncover the internal advice ignored by ministers. It was FOI that revealed the legal doubts raised by public servants. It was FOI that exposed the machinery of a program that caused immense harm to vulnerable Australians. Robodebt is one of the worst misuses of government power in decades and, without the FOI system, the details of robodebt may never have come to light. This is the power of FOI. It ensures that the public can find out what the government is doing. It exposes corruption and waste. It allows the public to participate in government decision-making and exercise some power as citizens. It's about ensuring that governments act in the public interest and are held to account when they don't.

But the FOI system is broken, and this is widely acknowledged. Given its purpose is transparency and accountability, some of the most worrying issues are about delays and secrecy. Twenty-five per cent of first-instance FOI requests take more than a month, and 10 per cent take more than three months. And, if you don't like that first-instance decision about what's disclosed, the time it takes to have such a decision appealed has blown out to more than 15 months. In many instances, this could render the information out of date and irrelevant by the time it's obtained.

The royal commission into the robodebt scandal found that an FOI system with greater transparency would have uncovered problems much earlier and allowed for quicker resolution. As for secrecy, as well as the halving of full disclosures over the last 12 years, refusals have nearly doubled, from 12 per cent to 23 per cent. This has become significantly worse under this government. In 2022-2023, for the first time on record, more FOI requests were refused than granted in full, defying the FOIA Act's presumption in favour of disclosure. And, when appealed, nearly half the decisions not to disclose are overturned.

It's true that, as well as these flaws in the timeliness and fullness of disclosure, the FOI system causes efficiency headaches for the Public Service. No doubt there are vexatious and frivolous requests, although I have only heard anecdotal evidence of this. The 580 requests received by the eSafety team from a single entity must have been painful, but I have seen no data about what proportion of FOI requests are vexatious. The minister has said that three-quarters of requests are from individual seeking information about themselves, which presumably are less likely to be vexatious. Given that public interest journalists would make up a significant proportion of the remaining quarter, the vexatious proportion must be well under a quarter. The question is: what's an appropriate price to pay for transparency and accountability? We have the equivalent of 500 full-time public servants filling FOI requests. Is that too many in a public service with 213,000 people in it? That's 0.2 per cent focused on public accountability. I recognise that vexatious applicants may now be able to use AI to generate many and slightly varied requests. This is a problem that needs to be considered along with the many other ways AI will be used in both helpful and harmful ways.

A second headache for the Public Service is the way the system might inhibit frank and fearless advice from the Public Service. The Shergold review made this clear. Public servants are increasingly reluctant to write things down. They fear that their internal deliberations will be exposed, misinterpreted and politicised. That fear undermines good governance. It weakens the quality of advice and it erodes trust within the Public Service.

This bill proposes to deal with these problems by: introducing an application fee for FOI requests; expanding cabinet confidentiality so that a document doesn't have to be produced if it was created for the 'substantial' purpose of being presented to cabinet, which is looser than the previous 'dominant' purpose test; amending the public interest test to introduce factors that weigh against disclosure, including if it may prejudice the frank or timely discussion of matters or exchange of opinions; introducing a 40-hour processing cap on FOI requests; introducing a pathway to reject vexatious or frivolous requests; preventing applicants from being anonymous; and other amendments to clarify and streamline the FOI process. The government argues that many of these amendments are in line with recommendations made by a series of reviews over the past 12 years.

The Federation Chamber transcript was published up to 20:00. The remainder of the transcript will be published progressively as it is completed.

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