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

by leave—I move amendments (1) to (3) as circulated in my name together:

(1) Clause 2, page 2 (table item 1), omit "Sections 1 to 3", substitute "Sections 1 to 4".

(2) Clause 2, page 2 (after line 3), after subclause (1), insert:

(1A) The Minister must not advise the Governor-General to make a Proclamation for the purposes of item 2 or 3 of the table until after the Minister has tabled a copy of the review of the Freedom of Information Act 1982 in accordance with subsection 4(4).

(3) Page 3 (after line 2), after clause 3, insert:

4 Review of operation of Freedom of Information Act 1982

(1) The Minister must cause an independent review to be conducted of the Freedom of Information Act 1982, with terms of reference to provide recommendations on how best to:

(a) encourage greater proactive disclosure of information to the public, and thus reduce the need for formal FOI requests; and

(b) maximise accessibility, transparency and efficiency for genuine and lawful FOI requests, including through setting an appropriate fee structure; and

(c) improve the timeliness of dealing with FOI requests, including review processes; and

(d) ensure that exemptions to disclosure requirements do not go further than is required for good government; and

(e) create a robust system for the resourcing, training, auditing, and oversight of authorised officers responsible for FOI decisions; and

(f) manage vexatious and frivolous requests; and

(g) address the potential impact of artificial intelligence, both to improve FOI processing and to mitigate the impact of its use in generating vexatious and frivolous requests; and

(h) provide structural support for public servants to provide frank, honest, timely and evidence-based advice.

Timing of review

(2) The persons conducting the review must complete the review before the end of the period of 6 months beginning on the day this section commences.

(3) The persons conducting the review must give the Minister a written report of the review as soon as possible after the review is completed.

Minister to table copy of report of review

(4) The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

These amendments would ensure that there is a broad review of the Freedom of Information Act before this bill comes into force. A broad review is the only thing that all previous reviews have agreed on. The 2013 Hawke review, the 2015 Shergold review, the 2019 Thodey review and the Senate Legal and Constitutional Affairs References Committee inquiry in 2023 all called for a comprehensive independent review of the entire FOI Act.

It's important to note that none of these listed reviews performed a comprehensive review of the FOI system, so this would not be duplicative. Instead, every previous review that has at least partially looked at the FOI system has pointed out its complexities and the importance of it actually getting a comprehensive assessment.

The reason we need a broader independent review of the act, as opposed to just a committee inquiry into this bill, is that this bill only addresses the problems that are solved by less transparency. This is, at best, half of the problem. The other half of the problem is that, in many circumstances, we need more transparency.

There are many reasons to increase the information that's disclosed. 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 this 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 that require greater transparency are not addressed in this bill. A comprehensive independent review should be linked to the fundamental purpose of the FOI system, based on the principle that we need to maximise transparency and efficiency for genuine and lawful FOI requests. Within this context, it should consider how best to encourage greater proactive disclosure of information to the public, and thus reduce the need for formal FOI requests.

It should consider how to maximise accessibility, transparency and efficiency for genuine and lawful FOI requests, including through setting an appropriate fee structure. It should consider how to improve the timeliness of dealings with FOI requests, including review processes, and ensure that exemptions to disclosure requirements do not go further than is required for good government. It should consider how best to create a robust system for resourcing, training, auditing and oversight of authorised officers responsible for those FOI decisions and how best to manage vexatious and frivolous requests. Also, it should consider how to address the potential impacts of artificial intelligence, both to improve FOI processing and to mitigate the impact of its use in generating vexatious and frivolous requests. Largely, it should consider how best to provide structural support for public servants to provide frank, honest, timely and evidence based advice.

This review should be done by independent experts, not by representatives of the government who are focused on reducing the workload and reputational risk for government. It also needs to provide significant opportunities for public feedback. The FOI system is part of the checks and balances that we put on governments to ensure that power is used in the public interest. We should not be making changes to this system without seeking the views of the public and the media, who hold governments to account.

The consultation process for this bill was wholly inadequate, consulting only the public servants who can't help finding FOI requests painful to fulfil. Our FOI system is an essential part of our democratic checks and balances. Without looking at both sides of the ledger—the reasons for more transparency, as well as the reasons for less transparency—the government is doing the public a disservice in this bill. I commend the amendments to the House.

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