Monday, 18 October 2021
Export Finance and Insurance Corporation Amendment (Equity Investments and Other Measures) Bill 2021; In Committee
I rise to contribute to the discussion on the amendment. I will point out that I do a lot of FOIs, so I understand this space quite well. Everyone must understand that FOI has the unique characteristic of being the only tool that citizens have to directly engage in oversight and access information to be able to participate in debate. We in this chamber can ask questions on notice, seek orders for the production of documents and do Senate inquiries. We also have other institutions that conduct oversight, like the Auditor-General, who does a fantastic job. But the only method for citizens to be able to engage is through the use of FOI. They directly control that.
The FOI Act has a number of exemptions already in place. Section 45 is one of the business ones. There is also section 47, relating to commercial activities and so forth. There's a certain reality about FOI. If I were to make an FOI request of EFA right now, in the middle of a transaction, I can assure you I'd get a redacted return. I would probably go to the Information Commissioner, and it would be likely to take two years to come out the other side of that and then perhaps get to appeal to the AAT—a very lengthy process. So it's not as if FOI requests would generally seek to interfere with commercially sensitive transactions that are on foot, because of the way in which our system is quite broken.
Another point to make, just so senators understand this, is that you can make an FOI request and have it knocked back because of some sensitivity. Five years later, you can make the same FOI request and you might find that it doesn't get knocked back, because of the time that has passed since the original application was made. There's a requirement in law that FOI decisions be made on the basis of the circumstances at the time the decision is made, and often you will see, in FOI decisions that are published by the Information Commissioner or the AAT, that they've given consideration to the time that has elapsed since the information was first brought into existence, and often that gives rise to access to the documents.
So I just say that it's very difficult under the current regime to get access to information that is truly sensitive from a business perspective, but, even in circumstances where you might normally seek access to it, because of the time it takes to get through the FOI challenge, it's unlikely to be sensitive by the time you get to the point of getting it. At that point, you are dealing with a very experienced Information Commissioner or with the AAT, whose examination of any claims of commercial sensitivity is very deep and precise. For that reason, I don't think there is a requirement for additional exemptions or class exemptions to be put in place, and that's the basis upon which I will be supporting this amendment.