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

by leave—I move amendments (3) and (4) as circulated in my name together:

(3) Schedule 7, Part 1, page 59 (line 2) to page 60 (line 9), omit the Part.

(4) Schedule 7, Part 2, page 61 (line 1) to page 63 (line 8), omit the Part.

In a bill full of antidemocratic reforms that will worsen transparency and accountability in our government, the amendments proposed in schedule 7 are perhaps the most egregious changes proposed. The amendments I'm moving today seek to repeal both the changes to cabinet exemptions as well as new powers to refuse FOI requests without even consulting the relevant documents.

First, on the summary refusal of request. This part of schedule 7 would enable decision-makers to refuse a request when 'it would clearly be exempt' under the relevant section of the act. This means that a decision-maker can refuse a request without ever checking whether it is actually an exempt document. Simply believing it would be exempt will be enough to refuse a request. I'll say that again, just to make sure everyone has got this straight: you're right to access government information can be determined by whether the public servant thinks it would involve an exempt document. That doesn't pass anybody's pub test. It's lazy, at best. The test of 'clearly exempt' is elastic and it will be stretched in practice. That is not a fair contest, and it will discourage legitimate scrutiny. It will result in worse outcomes. Now while you can appeal, most people will simply give up. It's just another way that freedom of information will be harder to access.

Second, on cabinet exemptions. It's already incredibly difficult under the current FOI Act to access documents that have gone anywhere near the cabinet room. Years of litigation have established a very high threshold for the disclosure of documents involved in the cabinet process. Now, I fully support the principle of cabinet solidarity, and I agree there must be rigorous and appropriate protections for cabinet confidentiality where it's needed. That's not my argument. However, I think most people today believe that the balance has shifted too far against disclosure—and that's under the current arrangements! But now the government want to go further and extend cabinet exemptions to more documents, many of which were never created to go to cabinet or even to directly inform cabinet deliberations.

Under this bill, anything considered or even simply noted in the cabinet process will be exempt, rather than the previous definition that refers specifically to deliberation and decision-making. Now this matters. I'm also extremely concerned that the previous dominant purpose test will be replaced by a substantive purpose test. Words matter. This will make the threshold even higher. Words matter, and that's why they're in the bill! Under these proposals, a document could be exempt simply because it helped to inform a minister in relation to an issue the cabinet will consider. It is a long bow; I contend that it is too long. It's hard to imagine anything that this couldn't include.

Finally, these amendments to expand cabinet exemptions are in direct contravention of the concluding recommendations of the robodebt royal commission. As I said in my speech yesterday—it's important these things are recorded in Hansardthis government's proposals seek to reinforce a culture of cabinet secrecy that, in part, allowed robodebt to persist for so long. So concerned am I about this that I asked the Attorney-General about these proposed changes in question time in an attempt to understand why the government was rejecting the concluding recommendation of its own royal commission. Unfortunately the Attorney-General's answer did not inspire me with confidence—suggesting that the proposals were merely a clarification of what happens now and would reflect the policy intent of the existing exemptions. But this simply isn't accurate.

Yesterday the Centre for Public Integrity published a fact check on key claims made by the government in relation to this bill. The fact check said that it is misleading to suggest that this bill simply clarifies the existing cabinet exemptions. In fact the opposite is true. The Australian Law Council, in its submission, said:

… the effect of the proposed amendments … will be to broaden what is captured by the cabinet documents exemption and further limit access to information. This contradicts the closing observations of the Royal Commission.

The Law Council goes on to recommend that these amendments be rejected. So I seek to repeal these sections of the bill because they will make our democracy and our government less open, less accountable and less transparent, and we don't want that.

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