Thursday, 26 November 2015
Freedom of Information Amendment (Requests and Reasons) Bill 2015; Second Reading
The Freedom of Information Amendment (Requests and Reasons) Bill 2015 builds on Labor's long commitment to the principles of freedom of information and the public's right to know, and on a 2007 pledge to reform freedom of information legislation to promote a pro-disclosure culture. I know some senators are cynical about major parties in government maintaining commitments to freedom of information, but I believe it can be clearly demonstrated that that is, in fact, what Labor has done. This bill builds on that work. Labor recognises that further reform is needed to meet current and future challenges to freedom of information legislation, and we will continue to advocate for such reforms in opposition and in government.
Good governance depends on integrity within government and the public's trust in the fair, accountable and transparent operation of government instruments and processes. This is where the current Abbott-Turnbull government falls down. Just to pick a snapshot, we see today issues in the press around Mr Brough and ministerial accountability, and issues around Senator Brandis' slush fund and the creation of that. Senator Xenophon has raised the issues around the Office of the Australian Information Commissioner and this government's attempt to defund that very important freedom of information agency, despite the will of this parliament. And the list goes on.
Perhaps the most stark example, in my mind, were the comments by Prime Minister Turnbull about cabinet ministers utilising non-official sources of communication. On the face of it, and in the discussion around metadata and sexy forms of communication, social media and the like, this may not seem that important. But I remind senators and those who closely followed our discussions on retention of metadata, it is quite contrary to this government's rhetoric in other areas, such as national security—and certainly with respect to freedom of information. Senator Xenophon, just before you leave, I hope that, in the matters you are pursuing with Defence, we do not find that this culture has permeated even organisations such as the Department of Defence and that the material you are seeking does not ultimately end up being encrypted and/or deleted, as the current Prime Minister is encouraging cabinet ministers to contemplate.
These are very serious matters and, if anything, they remind me of the reckless behaviour of the Prime Minister in his former role, before his position as Leader of the Opposition was terminated in the OzCar-Godwin Grech saga. Those senators who may not have followed this closely may not understand that metadata was a key issue in that case as well, as was access to freedom of information, or indeed this parliament's or this Senate's access to information. What occurred in that case was that the Senate Committee of Privileges in investigating that matter was provided with detailed metadata from the Treasury which identified quite reckless behaviour by the then Leader of the Opposition in relation to his direct communications with Godwin Grech and his pursuit of the OzCar affair. I had hoped that Mr Turnbull had learnt from that experience. But, in recent times, in hearing him talking about cabinet ministers utilising non-official sources of communication, those hopes were of course dashed. If he demonstrates further examples of recklessness like this, I suspect that the honeymoon will not last as long as some commentators think.
As I said, good governance depends on integrity within government and the public's trust in fair, accountable and transparent operation. And certainly while there is talk at the moment at the senior levels of government, we will see in the not-too-distant future whether this government can walk that talk. Good governance also requires balancing the need for confidentiality with the legitimate right of the public to know about departmental operations. In our previous reforms to freedom of information legislation, Labor has always strived to strike that balance. Unfortunately, though, as noted by Senator Ludwig when he introduced the bill in May this year, the Abbott—now Turnbull—government 'jeopardised the balance that Labor had put into the Freedom of Information Act to favour secrecy, which has led to less transparency in government'. Indeed, the Public Service Commissioner went as far as to suggest, in comments noted in the Canberra Times in March this year, that government changes to freedom of information laws were 'pernicious'. Can you imagine a Public Service Commissioner suggesting that the behaviour of the government of the day is 'pernicious'?—that is a good word for Senator Brandis, although I doubt that he has taken those thoughts into account. But these comments reflect broader concerns about the government's attempts to weaken freedom of information rights by introducing a 2014 bill to abolish the Office of the Australian Information Commissioner.
Let's move to a little bit more detail about how the government's behaviour with that office demonstrates its lack of commitment to freedom of information. That bill would remove the role of oversight from the independent Information Commissioner. The bill has not been debated in the Senate, because the government cannot progress it, cannot convince the crossbench that this is a measure that we should support. But Senator Brandis continues to avoid directly addressing concerns about the future of the Office of the Australian Information Commissioner. Can we take it that Senator Brandis's recalcitrance on these issues reveals a deeper distaste among his colleagues for the public's right to know how the Abbott-Turnbull government operates?
Despite numerous estimates sessions in which I have questioned Senator Brandis on these issues, and in light of the fact that the government closed the Canberra office of the Office of the Australian Information Commissioner in December 2014, almost 12 months age, leaving the Information Commissioner and the Freedom of Information Commissioner to work from home—in his kitchen, I recall, and I suggested that maybe he had the Thermomix in there to jumble up the data that the government seeks to conceal—there is still no sign of the government responding to these concerns and indicating whether it will proceed with this legislation or whether it will reaffirm the freedom of information culture that has been painstakingly fostered in Australia over many decades.
At least there are voices of reason urging them to make their position clear, such as a former New South Wales state Liberal Attorney-General John Dowd, who in August this year cautioned Senator Brandis that the Office of the Australian Information Commissioner can be abolished only by statute, not by defunding it—which is, of course, Senator Brandis's preferred method of operation, if you look at his experience with the Australia Council, setting up slush funds, and I can think of a few other agencies where this method applies. In his role as president of the Australian section of the International Commission of Jurists, which aims to protect the rule of law, John Dowd went on to warn the Attorney-General that attempts to undermine statutory authorities by executive government through non-legislative means threatened the separation of powers and—one of Senator Brandis's favourite phrases—the rule of law. How he can stand in his current portfolio and continue to utilise these sorts of methods astounds me.
But in reference to Senator Ludwig's bill, the fact that requests under the Freedom of Information Act can currently be refused or documents edited without explanation from agencies or ministers serves only to undermine public trust that government is adhering to those principles. This bill seeks to ensure transparency and accountability within the framework of government decisions concerning freedom of information requests by amending the Freedom of Information Act 1982. The bill's other main purposes include allowing members of the public to be informed about requests made and to receive an explanation as to why documents have not been released, allowing applicants seeking similar documents to build on requests, and reducing duplication in requests. It would achieve these goals by requiring government agencies and ministers to publish the exact wording of freedom of information requests. It will also require government agencies and ministers to publish a statement of reasons concerning their decision to allow, refuse or edit the release of requested documents.
Supporting these measures by passing this bill will make it clear that the government is as committed to good governance based on freedom of information principles as is the opposition. Either way, Labor will continue to defend transparency and accountability in government by protecting the public's right to know, keeping pace with modern challenges to freedom of information through reform.