Thursday, 26 November 2015
Freedom of Information Amendment (Requests and Reasons) Bill 2015; Second Reading
I had to look very carefully to see the last time I had the honour of taking part in this discussion about freedom of information. When I checked the Hansard, I saw that I had made my first incredibly important three-minute contribution in this discussion on Thursday, 18 June. I know that people would be really interested to know where we are moving on this particular piece of legislation. It is quite simple. Senator Ludwig has, through his Freedom of Information Amendment (Requests and Reasons) Bill 2015, put forward a proposition to the Senate to make freedom of information more open and transparent and to allow the public to know exactly what is going on with applications across the range of government agencies.
Many people in the chamber have had the opportunity to make a contribution on this bill, as the bill has arrived in private members' business on a few occasions. I think it is important to understand that the original designers of the bill had a very straightforward sense of what freedom of information truly is. When they began looking at these issues, particularly around the early 2000s, at both the federal and state levels, it was felt that we needed to have effective freedom of information mechanisms. In my own state of Queensland it was actually a bit earlier than that, in the late 1990s, that the Queensland state government acted in response to concerns from the community—the legal community and people who had been involved in the system. The concerns were that, whilst there had been attempts made to put systems in place to help people understand decisions, processes had not been stringent enough to effectively allow not only the applicant making the freedom of information request but also other people who might well have been interested in that issue to know what requests had been made and what the government's responses had been. That is indeed what Senator Ludwig is putting forward for the Senate to consider in this private member's legislation.
We have the system. All departmental websites publicise information about their commitment to issues around freedom of information. You can go through the dot points on these websites that say how it operates, what the process is for applicants and what the time frames are for freedom of information requests and responses. They also tell you that in some cases the department will be able to charge for providing the information, based on the amount of time it would take. The websites also tell you that you may not always be able to get the information you are seeking, because there are some things that departments decide cannot be released.
But there must be justifications for those decisions. That is one of the key elements of Senator Ludwig's private member's bill: that those explanations of why a request has not been successful should be articulated in a way that is understandable not just to the applicant but to other people interested in the issue—because the motivation for freedom of information requests varies across the board. Some people have very personal circumstances they are trying to obtain information about, but others are looking at policy areas that are of interest or are disputed—decisions of government or decisions of departments that they may want to question. When you are seeking information that you have not been able to get in any way other than a freedom of information request, there should be public notification about why the decision was made—why decisions were made to not allow access to information and indeed why decisions were made to allow access.
With this bill we are moving forward to strengthen the existing legislation, the act that is in place, the one that the Labor government committed to in our 2007 campaign—the commitment that we would strengthen freedom of information and make sure it operated as it was intended to. Indeed the title gives you a hint about what the whole idea was. It was to have information about government actions available freely to the public. Freedom of information, by its very nature and its very title, sets up an expectation in the community that you will be able to have access to information. That is what Senator Ludwig's bill addresses. The bill will strengthen the existing legislation to deliver on the original core principles which are enshrined within the act—the core principles that say there should be transparency, there should be understanding of decisions that have been made and there should be policy processes that are observed.
I mentioned on 18 June that there are some areas, particularly around issues of security and anything that has the word 'ASIO' attached to it, where there is no way you are able to get the full detail of some decisions. There is probably an understanding that this is true because it is indeed linked to issues that are of national security sensitivity. But that should be clearly identified. It should not just be dismissed with a one-line explanation. If a request for information is put forward and a decision is made that it cannot be released because it has national security implications, that should be fully explained. Without going into any specific examples, that is what we are asking for. We understand that there are limits. We are not saying that every document should be released—no-one can say that. But what we are saying is that, when decisions are made, we should understand them.
Senator Ludwig's bill goes into detail. The whole idea is that we are allowing the public to see specific and detailed reasons as to why freedom of information requests have been denied. I do not think that is an unreasonable expectation. If we are committed to transparency of government, if people are to understand what decisions of government and parliament will mean for them and their community, when people exercise their right to access the system and put in an FOI application they should expect to get a reasonably detailed, focused and personal response. That was the expectation of the original legislation.
There were concerns raised by some on the government side about possible workload issues and difficulties in the operation of the system with the details in this legislation around the timeliness and amount of information that can be released. However, on balance, the expectation of having freedom of information legislation operational in government departments should mean that there will be decisions to make those resources effectively funded. Government departments already have a section that is linked to freedom of information—and they are often linked to other communication activities such as ministerial correspondence. But resource priority should be given to the responsibility of freedom of information in government departments.
In a time of budget restrictions in government departments—and I have no particular evidence of the current administrative arrangements in government departments—it may well be that administrative decisions around how many people are working in this area may have some impact on the timeliness of decisions and perhaps the fullness of information provided. If that is the case, Senator Ludwig's proposed amendments to the FOI Act would ensure that there will now be a legislative basis to make sure funding is provided. A clear definition of timeliness and the types of explanations that must be available to the public when they make an FOI request would be set out in the legislation so that government departments would have the stimulant to say, 'This is what we have to do and, therefore, we have to resource it effectively.'
That is a very important element of the legislation. If Senator Ludwig's private member's bill is accepted, people working in this very important area will no longer be free to not meet the deadlines—which is 10 days in this legislation—and the requirement to provide transparent and detailed responses to requests. That would be set out in the resourcing decisions that the department makes. They would know the volume of FOI requests they get—and that varies from department to department. Some departments receive a much larger number of FOI requests than others. Nonetheless, it is clearly the responsibility of government departments to provide this service.
I had a quick look at a range of government department websites. Their websites state that they provide an FOI service—as they must. Tightening up the time frames and the expectations around the type of response that must be made would be part of the government departments' decision making about their distribution of resources. We get complaints from the community about time delays in getting a response and, when you get a response, the limited nature of it. Therefore, the administrative processes would be strengthened so that there would not be a time delay or the very curt responses I have seen to some FOI requests.
The bill before us does not make a large number of changes. What it does is remind us of the original intent of freedom of information for government and the public sector. It puts in place the clear responsibility to make information available, to give an effective response to requests and also to engage with the person or group who has put in the request. That was the expectation when freedom of information was originally introduced in the Commonwealth and state parliaments. Over that time, people have had a chance to evolve in terms of the way it operates. There have been numerous discussions and conferences among professionals in this area to look at best practice and to examine how best the system should operate. Out of those discussions, particularly by professionals who work in the field and by the community, who have been requesting freedom of information responses over many years, has come a view that there needs to be tightening of the system; there needs to be a reinforcement of what freedom of information really means. There is also a clear expectation of the government that, when citizens—and this is a term used a lot in public sector discussions currently; talk of citizens accessing the services seems to have come into vogue over the last couple of years—put forward a request under freedom of information, they should be allowed to see specific and detailed reasons for the response to their request, and that there should be timeliness around when this information is provided.
Also—and this is one of the things I like about this bill—it would mean that, published on the websites, people would be able to see the nature of the requests and the responses. Another element has been that, when individuals access the system, sometimes that stimulates more action from other people in the community. So, on a particular issue, there could be a series of requests for information, and that could be built upon by seeing what had already happened by the website discussions around a particular issue. That seems to be a step forward in the way freedom of information should operate. It also seems that this shows genuine respect not just for the community but for the people who worked so hard to ensure that freedom of information legislation was introduced and implemented in our Commonwealth departments.