Senate debates

Monday, 31 August 2020


Freedom of Information Legislation Amendment (Improving Access and Transparency) Bill 2018; Second Reading

11:10 am

Photo of Rex PatrickRex Patrick (SA, Centre Alliance) Share this | | Hansard source

Before I speak to the Freedom of Information Legislation Amendment (Improving Access and Transparency) Bill 2018, I want to briefly share some FOI philosophy. I'll quote from James Madison in 1822:

A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both. Knowledge will forever govern ignorance: and a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.

We'll move forward 150 years to 1976, and one Malcolm Fraser, as the Prime Minister, said:

If the Australian electorate is to be able to make valid judgements on government policy it should have the greatest access to information possible. How can any community progress without continuing and informed and intelligent debate? How can there be debate without information?

Wise words.

People are granted access to information through our FOI Act. It provides, by way of statute, a default right to information. Indeed, it is for government to say why you can't have the information rather than for a citizen to say why they should. That is the purpose of the Freedom of Information Act 1982. Unfortunately the implementation of the act is broken. You just have to wander up to level 2 of this building and speak to journalists who want FOI information to help them do their job of keeping government to account. It's also necessary for accurate reporting. Yet many of them will tell you that it's a process that simply isn't worthwhile conducting. That's an indictment. If you ask constituents, they're uncomfortable about FOI as well. Some constituents just seek access to information about themselves, and they're entitled to do that. They're entitled to know what it is that government has on record about them. Indeed, the FOI Act does provide them with rights to annotate records if they think they are incorrect. But it's also necessary for citizens if they want to contribute to debates. I have helped constituents with FOI when they've been trying to understand why government is doing what it's doing. That can be at the local, state or federal government level. Of course, we're focused today on the federal government level. Unfortunately, what happens when you submit an FOI is that departments make cavalier claims that deny access and then seek to wear the applicant down through process, be it an internal review, an Information Commissioner review or extending up to the AAT.

The number of FOIs is rising. It's not like it's a dying requirement. In actual fact, people are more interested in information than they have been in the past. Look at the number of Information Commissioner reviews. Just to be sure that everyone understands what I'm talking about, I'm not talking about FOI applications but applications to the Information Commissioner when they are denied access. In 2011-12, there were 456 applications for an Information Commissioner review. In 2017-18, that number had almost doubled to 801 applications. Not all of those applications go to decision. Once an application has been submitted to the Information Commissioner, sometimes the department will reconsider. Indeed, throughout the process, they may reconsider. So we saw that, in 2011-12, whilst there were 456 applications, only about 25 applications went to final decision, and, in 2017-18, we were up to 123 decisions. That's almost one every couple of days, which is relevant to what I'm going to talk about a little bit later in terms of underresourcing of the Information Commissioner.

In terms of finalisation times, how long does it take to get access to FOI through the Information Commissioner? Typically, 30 days is the initial application time. You can then go through an internal review if you want to, or you can send it to the Information Commissioner if you've been denied access. About 39 per cent of applications are completed within 120 days, and 47 per cent are completed within six months. The number rises to 69 per cent by the time we're talking about reviews completed under nine months. For reviews completed under 12 months, it's 84 per cent. So, if you do go through this process—and these are 2017-18 numbers—you'll find that you may well be waiting a year. Indeed, 16 per cent of applications in 2017-18 were longer than a year in progression. That was 97 applications. So 97 people who wanted access to information and who wanted timely access to information were waiting for over a year for the Information Commissioner to complete her review. There's something wrong, and my bill seeks to deal with some of those things that are wrong.

The first thing my bill does is require the government to fill the three offices of the Australian Information Commissioner—that is, the Information Commissioner, the Privacy Commissioner and the Freedom of Information Commissioner. There are three commissioner positions in statute; unfortunately, only one of them is filled. The Australian Information Commissioner Bill passed in 2010. Professor McMillan, a very honourable law professor, was the Information Commissioner. He had James Popple as the FOI Commissioner, and Timothy Pilgrim was the Privacy Commissioner. They started up the office, they commenced doing training across government and they produced guidelines. They worked very hard. Then, in 2014, the Abbott government tried to disband the Office of the Australian Information Commissioner. That was rejected by the Senate. And what happened then? The Abbott government starved them of funds. Many may recall articles in the paper about Professor McMillan working from home with almost no staff supporting him.

Thankfully, when he became Prime Minister, Mr Turnbull relented, and, since then, we have seen an increase in funding. However, we didn't ever fill those additional positions. From about 2014, the Information Commissioner was only one person, Mr Timothy Pilgrim—interestingly, a person without a degree. I'll talk about that shortly. Since March 2018, we've had Ms Angelene Falk. She does have a degree. Unfortunately, she's been loaded up with additional work relating to, for example, the Open Government Partnership and additional privacy tasks. You'll recall that, in relation to COVIDSafe, she was engaged to look at privacy related issues. She's got to be one of the hardest-working public servants around. I don't like the fact that Information Commissioner reviews take a long period of time, but I don't necessarily blame Ms Falk. I think she does the best she can. This is why we need to fix things. We do need to have three commissioners: the Information Commissioner, the Privacy Commissioner and a dedicated Freedom of Information Commissioner. The office is underresourced.

We should allow citizens, if they want to, having been dissatisfied with the department, to bypass the Information Commissioner, to pay their $920 and go straight to the AAT. That should be permitted and that's what this bill seeks to do. If the Information Commissioner gets to a point where she can't make a decision within 120 days, it should be a free pass to the AAT, which is a much larger and better-resourced organisation. That's what this bill asks.

This bill also prevents agencies from making submissions to FOI decision reviews that have not been advanced by the agency in its own decision-making process so that it can't switch exemptions halfway through. That would prevent the current practice, where you have an applicant who's quite successful, who eats away at a particular exemption, and the government just stick their hands up and say, 'We're going to make a new one.' I can see Senator Stoker sitting there quite concerned that I'm suggesting we interfere with the way in which merit reviews are run de novo because it's a legal principle, but, right now, there is abuse in this area. I'll give you one example. In October 2018, I made an FOI application made to the Prime Minister. The Prime Minister's office made a decision on a really complex and nuanced piece of law, an erroneous argument relating to jurisdiction. Of course, I went to the Information Commissioner. The Information Commissioner looked at it over a period of time and it took her about six months to work out that she didn't want to touch it with a barge pole, so she denied the review for the purpose of allowing me to go to the AAT. So I take the matter to the AAT, I pay my $920 and, as soon as I get there, what do the Commonwealth do? They abandon the argument that they had. They realised it was so erroneous, it wasn't going to stand up and so presented another argument based around parliamentary privilege. Somehow, the executive were proposing a legal argument that parliamentary privilege must be recognised as protective of an action by the executive to prevent something being tabled and debated in the parliament.

The Bill of Rights in 1688 was signed after the hanging of King Charles, after a 1649 trial in Westminster Abbey by prosecutor Mr Cook with the approval of Mr Cromwell because they wanted to prevent the king from interfering with the parliament. Now we have the AGS arguing, for some reason, that parliamentary privilege somehow protects the king or the executive when he seeks to censor the parliament. Article 9 of the Bill of Rights, I remind people, says:

That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.

And yet they tried to abuse that. They wanted to mount an argument in relation to that, so the matter was elevated to a presidential member, to the Honourable Justice White. It turns out he knows a lot about parliamentary privilege. He dealt with the matter. So what happened the day before the hearing? The Commonwealth pulled out because that's their strategy. They raise an exemption then they abandon it. It's all about making sure that, when information is provided to a person, it's provided late, when the value of the information has diminished considerably. That matter is still before the AAT on just standard FOI stuff now, a decision is pending, and I suspect I'll be informing the chamber of that particular decision. I've lodged over 180 FOIs in my time as a senator and I know exactly the tactics that they play.

We also need to make sure that the FOI commissioner should have a legal degree. Mr Pilgrim did not. I don't cast any aspersions on Mr Pilgrim, but we should have lawyers sitting in the role of people who are making these decisions. It's a requirement of the law that the freedom of information commissioner has to, but we don't have one of those. It's filled by an Information Commissioner, who doesn't have to have a law degree. Angelene Falk, the current Information Commissioner, does. It also requires agencies to not publish FOIs until after about 10 days. After a journalist has gone through all of this, the last thing they want is to have their story taken away from them. We need 10 days in the legislation. We also need to make sure things like external costs are disclosed so we can see how much the government is spending trying to keep information from people.

This bill fixes a number of issues that slow down the FOI process. A well-informed citizenry is the lifeblood of democracy and, in all arenas of government, information—particularly timely information—is the currency of power. There's clear dissatisfaction amongst FOI users. Something needs to be done, and this bill is a good start.

11:25 am

Photo of Amanda StokerAmanda Stoker (Queensland, Liberal Party) Share this | | Hansard source

Freedom of information is a topic that excites and thrills us all! Oh, hang on. Sorry. Wrong speech. FOI excites and thrills almost nobody, and yet it is really important to transparency and accountability of government. So here we are, speaking on the Freedom of Information Legislation Amendment (Improving Access and Transparency) Bill. The government supports the general intent of this bill to make government more transparent and more accountable, to assist citizens and the media to access information under the law and to improve the effectiveness of Australia's freedom-of-information laws. However, despite that good intention, the measures contained in this bill just don't achieve those objectives and, in some cases, would unnecessarily duplicate laws and obligations that already exist.

That's why a bipartisan report—Labor and the coalition working together—of the Senate Legal and Constitutional Affairs Legislation Committee recommended that this bill not be passed by the Senate, outlining a number of unnecessary and duplicative requirements. If it were the case that the coalition's support of this bill reflected some grand conspiracy to hide information—as, no doubt, some other senators would suggest—then it simply wouldn't have had that bipartisan attitude displayed. I think that's an important point to make.

Let's go through what the bill does and step through some of the reasons why it just doesn't do what it sets out to do. Firstly, the bill includes a requirement for the National Archives of Australia to publish more-detailed information about expenditure on legal advice for requests for records. On its face, it doesn't sound bad. But the requirement would largely duplicate existing reporting requirements for legal expenses that exist under the Legal Services Directions of 2017, while also creating a reporting obligation that would be inconsistent with whole-of-government arrangements that apply under those directions.

The second thing the bill does is require the Australian Information Commissioner to have legal qualifications to review freedom-of-information decisions. I'd suggest that's a requirement that is entirely unnecessary. It is often not essential for senior public servants or statutory officers who make decisions that have a legal impact to themselves hold legal qualifications. It's quite common practice for decisions to be made at all levels of the Public Service on technical matters or procedural matters that have a legal impact. But the idea that that means everyone in the Public Service should be a lawyer is one that is misplaced, indeed. Even if it were necessary to sometimes access legal information in order to make these decisions, it's also true to say that people within an office—for instance, the office of the information and privacy commissioner—might have legal qualifications to support the person who is running the show.

I'll give you an example. The former information and privacy commissioner, Mr Timothy Pilgrim—a person held in such high regard that he's been recognised with the Public Service Medal—successfully made a large number of freedom-of-information review decisions despite not having legal qualifications himself, and he did so in a manner that maintained the respect and dignity of the office and in a way that was, for all relevant purposes, legally sound. I can't help but think Australians would be less than enthused if we started applying more and more obligations to put more and more lawyers at every level of the public service, and I say that—full disclosure—being one myself.

Third, the requirement that agencies publish details about freedom of information requests on their FOI disclosure logs between 10 and 14 days after granting access, as opposed to current arrangements which require publication within 10 days, would actually slow down the publication of information on FOI disclosure logs. Additionally, nothing under the current FOI laws prevents an agency or minister from proactively releasing information, as long as there are no other legal restrictions preventing the release of that data. If this requirement was enacted, there could actually be uncertainty about whether the provision prevents an agency or a minister from otherwise releasing information that is subject to the provision before the 10-day minimum disclosure log publication time frame had expired. We wouldn't want to provide disincentives to the free disclosure of information.

Fourth, the bill exempts parliamentarians from charges under the Freedom of Information Act—criminal charges, that is. The existing public interest test that must be applied to freedom of information charges decisions is flexible enough to deal appropriately with the circumstance where we are dealing with requests from parliamentarians. Section 29(5) of the Freedom of Information Act provides that ministers and agencies, in responding to an applicant who is contesting a charge for access, must take into account 'whether the access to the document is in the general public interest' in determining whether or not reduce a charge. I doubt it could be said that exempting parliamentarians from criminal accountability of any kind would pass the pub test for Australians in the street—maybe that means Australians in the pub!

Fifth, the bill prevents agencies and ministers from relying on arguments that were not relied upon during an initial FOI access decision during a later Information Commissioner review. That proposal isn't consistent with the efficient and effective operation of the Information Commissioner review framework. If information has come to light by the time of that review then there's no obvious reason why that additional information shouldn't be able to be taken into account, in an effort to make a decision that is as good as is possible on the basis of the data that is to hand at that moment in time, particularly given that this process is in large part about avoiding the need to take matters like this to court. For example, the FOI Act provides that the purpose of an Information Commissioner review is to determine the correct or the preferable decision in the circumstances, and it allows the Information Commissioner to access all of the relevant information and material in making that review decision. Additionally, what's proposed at item 11 of this bill would frustrate the ability of an Information Commissioner to consider all relevant material to reach a correct and preferable decision when doing so on review.

Sixth, this bill allows applicants to apply directly to the AAT, the Administrative Appeals Tribunal, for review of a freedom of information decision or to apply to the AAT where the Information Commissioner would take longer than 120 days to complete a review. This would significantly increase the AAT's already high workload and it would undermine the objective of facilitating FOI review decisions in a timely way. Any significant increase in the workload of the AAT resulting from the proposed amendments would adversely affect the AAT's ability to finalise matters that are already on its books. In turn, this is likely to lead to longer finalisation time frames and increased backlogs across the workload of the AAT, which, as we know, covers many different disciplines. Additionally, the proposal to make transfers exempt from AAT applications is inconsistent with the AAT's current fee-exemption reasons, which at the moment are with regard to matters like financial hardship or particular vulnerabilities of the applicant.

There's also scope for this provision to be misused by applicants who are seeking to avoid paying AAT application fees. Madam Acting Deputy President Fierravanti-Wells, you know I am always for reducing the cost of people's access to government; I'm always for reducing the cost to Australians of dealing with red tape. Indeed, we should be removing as much of that red tape as possible. But these particular fees do, at times, play an important role in deterring vexatious litigation, and that's important because the taxpayer bears the cost of running the courts and resourcing the people needed to deal with those many vexatious claims before the AAT.

I'll turn to the final thing that this bill does, which is to require agency annual reports to include information about external legal expenses that relate to freedom-of-information requests. Again, this would unnecessarily duplicate existing reporting arrangements which require agencies to provide this information to the Office of the Australian Information Commissioner. I recently touched on red tape, and this is another example of a place that simply doesn't need to be burdened even more. Each time we impose more reporting requirements, each time we impose more administrative burdens, there is a cost associated with it, and ultimately those costs are passed on to people who want to make FOI applications, people who want to use our legal system. So, while the imposition of this additional requirement may be well intentioned, we should tread with caution in circumstances where it really doesn't add anything to the information that is available on the public record.

The government remains steadfast in its support for transparency, for the value of the freedom-of-information arrangements and for providing substantial funding to the Office of the Australian Information Commissioner so that it can do its job of making sure Australians can access important information from governments. For instance, in the 2018-19 budget $25.1 million was provided to enhance the Office of the Australian Information Commissioner's enforcement capability and to enable it to effectively oversee increased Privacy Act penalties and new online privacy rules. A further $2.6 million has been committed, over five years, to ensure that expanded Medicare data-matching activities that occur do so in compliance with the Privacy Act and other laws that protect Medicare Benefits Schedule and Pharmaceutical Benefits Schedule data.

While the objectives of transparency, accountability and freedom of information are objectives that are highly valued and shared by this government, the measures contained in this bill simply don't achieve those otherwise noble objectives. So I urge members of the Senate not to support this bill. That's not because we don't think transparency is important—of course we do—but because, sadly, this bill doesn't assist in achieving those important objectives.

11:38 am

Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Shadow Minister for Northern Australia) Share this | | Hansard source

The Freedom of Information Legislation Amendment (Improving Access and Transparency) Bill 2018 seeks to address some of the failings of the FOI system as it has been operating for the past seven years under the Abbott-Turnbull-Morrison government. Clearly, Senator Patrick is frustrated about the way in which the government continues to trash the freedom-of-information system, and Labor shares Senator Patrick's frustration. There is no doubt that the freedom-of-information system, designed to make the government more accountable to the people who elected it, has been absolutely trashed over the past seven years of this government.

This government hates scrutiny. This government has contempt for basic notions of accountability. This is a government that prefers to operate in the shadows. It is not difficult to see why, because, every time sunlight does find a way in, Australians do not like what they see. Whether it's sports rorts, Angus Taylor's latest outrage, the awarding of contracts worth hundreds of millions of dollars to companies headquartered in beach shacks or the government's shocking and scandalous record on aged care, the Morrison government does not want Australians to know what it is up to. Make no mistake: that is why the government hates our FOI laws and treats those laws with such contempt. That is also why the government continues to starve the Information Commissioner of resources—so that it takes the commissioner so long to review a rejected freedom-of-information request that the applicant just gives up.

Photo of Paul ScarrPaul Scarr (Queensland, Liberal Party) Share this | | Hansard source

Murray, is that why you're reading a majority of the report?

Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Shadow Minister for Northern Australia) Share this | | Hansard source

If Senator Scarr chooses to listen to the rest of my contribution, he might have an answer to that question. I understand he's a bit agitated about FOI.

The Morrison government have resisted our FOI laws for the same reasons they resisted the banking royal commission. The Morrison government have resisted our FOI laws for the same reasons they have resisted establishing a genuine national integrity commission of the kind that Labor has pledged to create—because they fear transparency, fear accountability and fear the Australian public knowing what they are really up to.

This bill, introduced by Senator Patrick, is well intentioned, and many of the proposals it puts forward warrant close examination. For example, the bill would require the government to fill all three offices of the Australian Information Commissioner, the Privacy Commissioner and the Freedom of Information Commissioner rather than forcing the information commission to fill all three roles as the current government is requiring it to do. That is something the Labor Party has been calling on the government to do for some time.

The bill would also allow FOI review applicants to elect to have their matter bypass the Information Commissioner, who can take more than a year to make a decision on controversial issues in the Administrative Appeals Tribunal. While we understand why Senator Patrick has put forward that proposal, it is a proposal that, in our view, treats a symptom rather than addresses the underlying issue, which is that this government has starved the Australian Information Commissioner of the resources she needs to review FOI decisions. If we were to shift more of the burden of reviewing these decisions onto AAT, the government would simply do the same thing to the tribunal—starve the FOI division of resources. Fundamentally, the biggest problem with the current freedom-of-information system is not the law; it's the current government—a government that is at war with accountability, a government that is at war with transparency and a government that is at war with itself. Labor has a strong track record of respecting our FOI laws and will do so again if we are returned to government.

I will now say a little about Labor's proud record on FOI. We in Labor understand that freedom-of-information laws are an important aspect of a healthy democracy because they give the Australian public and media access to information about what the government, elected by the Australian people, is doing in their name. Labor have long championed FOI laws with the establishment of the Commonwealth FOI Act, a part of Labor's policy platform since 1972 when Gough Whitlam first called for such laws in a speech when he was opposition leader. Though these laws were not passed for another decade, it is yet another example of the reformist vision that characterised Gough Whitlam and reinforced his place in history as a great leader of this nation.

Since FOI laws were first introduced in Australia in the 1970s, Labor has worked to strengthen these laws to improve transparency in government and to champion the public's right to know. Prior to the 2007 election, the federal Labor Party made an election commitment to substantially overhaul the FOI Act as part of its policy platform to restore trust and integrity in government after the secrecy and abuses of public trust that characterised the later Howard years. Labor's commitments were set out in the policy document titled Government information: restoring trust and integrity.

When elected in 2007, Labor fulfilled its election commitment to restore the public's right to know. Labor engaged in extensive consultations on the proposed changes to our FOI laws in 2008 and 2009, including through a parliamentary inquiry by the Senate Finance and Public Administration Legislation Committee. The reforms were passed into law by parliament in May 2010. A key part of these improved laws was the establishment of the Office of the Australian Information Commissioner. This office was created to provide independent oversight of the FOI regime and to champion freedom of information across government. This reform was applauded by the public, by legal experts and by the media. In speaking on Labor's reforms to FOI laws in this place on 13 May 2010, Senator Ludwig noted that the passage of the FOI Act was a 'milestone for Australia'. He said:

The Rudd government continues to recognise that we are responsible and accountable to the people we serve. For this reason, when we were in opposition we committed to overhauling the FOI Act and we have delivered on this promise. This legislation expressly recognises that giving the Australian community access to government-held information strengthens Australia's representative democracy, recognises the role that this object serves to increase public participation in government processes and increases accountability in the government's activities.

But, since this Liberal government took power in 2013, they have been at war with freedom of information, at war with transparency, at war with accountability to the Australian people, who elected them, so Senator Patrick is to be congratulated for bringing forward this bill, which demonstrates his belief that FOI laws need to be strengthened and in the need to undo some of the harm that the Morrison government has done to our democracy in its trashing of FOI and its obsession with secrecy and cover-up. However, Senator Scarr, the Legal and Constitutional Affairs Committee examined this bill closely and, based on the expert evidence presented, the committee found that a number of the measures would not achieve their intended outcomes. Ultimately, the committee recommended against passing this bill. Labor accept the committee's recommendation and will not be supporting the bill at this time, but we look forward to further engagement with Senator Patrick on these important issues.

11:47 am

Photo of Larissa WatersLarissa Waters (Queensland, Australian Greens) Share this | | Hansard source

I rise to speak on the Freedom of Information Legislation Amendment (Improving Access and Transparency) Bill 2018, and I do so in the context that this is the least transparent government in history. They do everything possible to resist scrutiny. They systematically obfuscate, and, when they're backed into a corner or people are getting dangerously close to an inconvenient truth, they try the dead cat strategy. Under this government it's freedom from information, rather than freedom of information. So we're very pleased this bill is coming on for debate today.

The suspension of parliament sittings this year has really emphasised the critical role that parliament plays as an oversight and accountability mechanism. FOI laws are a core component of a transparent and accountable government, and they allow timely access to information so that the community, the media and other political parties can understand and scrutinise government decisions. But the current FOI regime has been systematically undermined. Some applicants are having to wait more than 12 months and pay exorbitant fees only to receive heavily redacted documents. This is not how robust democracies are meant to work. The Greens believe that national FOI laws need to be strengthened to facilitate proper scrutiny and to encourage well-informed public debate on issues that affect the nation. This bill is a step in that direction, and we will be supporting it.

I note that FOI laws haven't been comprehensively reviewed since, I believe, 1994, so we actually need a full root-and-branch review. When the government made a commitment to the national action plan for open government in 2016 and then a commitment to the second national action plan in 2018, there was some hope for greater accountability, but, sadly, we've seen absolutely no action. In fact, we've gone backwards, and this continues to be one of the most secretive governments in Australia's history. They reject the premise of the question. It's the Canberra bubble. They don't answer questions, or they come back months and months later with answers that are so massaged and workshopped that they are meaningless. They refuse FOI requests or they redact them beyond utility. The other tactic that has been frequently used and abused in recent times is the delegation of decision-making functions to bodies like the national cabinet, the Northern Australia Infrastructure Facility, the Great Barrier Reef Foundation and the COVID-19 Coordination Commission. Delegation to those sorts of bodies is making it harder and harder for the public to access information, because frequently those bodies are not subject to FOI laws.

In 2013, Dr Allan Hawke recommended a comprehensive review of Australia's FOI regime. Sadly, Dr Hawke's recommendations have been ignored—much as they were for our environmental laws, I might add. In fact, the Abbott government proposed abolishing the Office of the Australian Information Commissioner, which is of course the body that reviews FOI decisions, but the Senate blocked him from doing that. Abbott had to settle for slashing the information commissioner's funding. So they’ve now got fewer than half their previous staff, yet they have a 72 per cent increase in complaints. So, of course, the Office of the Australian Information Commissioner has been unable to properly discharge their functions. They are underresourced and overworked.

The Guardian's transparency project has described the culture of secrecy within government departments as being:

… aided by a flawed freedom of information regime beset by delays, understaffing and unnecessary obfuscation.

The key findings of the transparency project's research include the fact that at least 20 agencies have reduced the size of their FOI team. The Northern Australia Infrastructure Facility has rejected 99.4 per cent of the FOI requests that it has received. That's got to be a record. People will remember that this is the same body that approved lending Adani $1 billion in taxpayer funds and the same body that is currently working behind the scenes to support gas pipelines for this government's misguided gas led recovery.

The transparency project has also found that more than 2,000 FOI requests have taken longer than three months past the statutory time frame to be finalised and that the Department of Home Affairs is a serial offender in not meeting statutory time frames. Perhaps that won't surprise anyone. Many documents have lost relevance by the time they're released, if they are released at all.

In the past year, the Office of the Australian Information Commissioner has found that the Department of the Prime Minister and Cabinet, the Department of Human Services and the Australian Federal Police have unreasonably and inexplicably delayed FOI decisions, which raises concerns that those agencies are holding back information based on political cycles. The ANAO also found a 68.4 per cent increase since 2012 in the number of exemptions to FOI disclosure relied on by various agencies. The Department of the Environment and Energy was criticised for falling months behind in updating its FOI disclosure log. Thankfully—according to answers I've received to questions in estimates—that problem seems to have been rectified. Timely access to information should be the cornerstone of any government, no matter which political flavour it is. Yet this government is determined to hide information.

The Your Right to Know campaign, which was championed by media organisations, provided more examples of the sorts of information being denied to the public, including information about the scale of abuse and neglect in the aged-care sector, whether Australians are fighting as mercenaries in the bitter conflict in Yemen, communications between Australia and the UK about journalist Julian Assange, and awarding a $1 billion government travel contract to AOT, which is a subsidiary of Helloworld, which was run by then Treasurer Joe Hockey. He was a shareholder in Helloworld, and I think they also gave a freebie to Senator Cormann for a while there. FOI applications from journalists pursuing that story were repeatedly delayed on a number of different grounds.

Senator Scarr interjecting

Photo of Concetta Fierravanti-WellsConcetta Fierravanti-Wells (NSW, Liberal Party) Share this | | Hansard source

Senator Scarr, I think you'll have an opportunity next to tip your own bucket.

Photo of Larissa WatersLarissa Waters (Queensland, Australian Greens) Share this | | Hansard source

I'll continue on. I didn't hear that interjection—it's one benefit of being remote; you don't get to hear all the wonderful interjections! Anyway, carrying on: the reasons for delay for FOI were multitudinous: first that it was commercial in confidence, then that it would compromise DFAT operations overseas, then that releasing the information would be contrary to the public interest and then that it was a complex case. After more than six months and an appeal, heavily redacted documents were finally released, but the delay meant that the 2016 election had already happened and the controversy had lost some of its significance.

Some of the other issues that the Your Right to Know campaign has emphasised have been kept hidden by poor FOI laws include details of kids being kept in adult watch houses, which sadly is still the case. Even a request for the menu from the Parliament House dining room was caught up in months and months of to and fro. It boggles the mind. Then of course we get to the persistent secrecy over political donations. While most states and territories have recognised the importance of transparency and require disclosure of donations within between seven and 21 days, political donations at the federal level can be kept secret for as long as 12 months. People would know that they get disclosed from 1 February every calendar year.

These remain prohibitive for small not-for-profits and for media. In a particularly egregious example, the Australian Conservation Foundation was asked to pay almost $500 for documents showing internal discussions on leaving climate change out of the government's 2015 Intergenerational report. After paying that fee, ACF got the documents with 241 of the 243 relevant pages deemed exempt and the remaining two pages partially redacted—and that cost almost 500 bucks. Without a robust FOI process, many details of concerning government behaviour come to light only through the bravery of whistleblowers—and of course our whistleblower protection legislation also needs to be strengthened—exposing sources and journalists relying on them to significant legal risk. Just ask Annika Smethurst, Daniel Oakes, Sam Clark, Witness K, Bernard Colleary, Richard Boyle and many others.

The culture of refusal and delay has resulted in a significantly higher workload for the Office of the Australian Information Commissioner, but they are chronically underfunded, and delays are banking up. In a response to a recent application for review submitted by my Senate colleague Senator Faruqi, the Office of the Australian Information Commissioner said: 'You will be advised about the next steps in the information commission review process once your application has been assessed by a senior member of the FOI team. Unfortunately, the OAIC has received an increase in the number of IC review applications, and we're endeavouring to process these as soon as practicable. The assessment by a senior member of the FOI team can take eight to 12 weeks and sometimes longer, depending on the complexity of the issues raised in the IC review. Due to the number of IC review applications on hand, allocation to a review officer may take up to 12 months. The act does not specify a time for completion of an IC review. The time taken will depend on a number of factors, depending on the complexity of your review.'

Clearly a delay of up to 12 months to even allocate an application for review to a particular officer is absolutely outrageous and unjustifiable. Without additional support to both internal FOI officers and the Office of the Australian Information Commissioner, agencies have no real incentive to proactively share information with the Australian people—which I'm sure suits the government down to the ground. The chronically underfunded FOI regime that we have makes it next to impossible for the public to stay informed about what its government is up to. The Greens will be supporting this bill as a step in the right direction to making FOI laws work, to give Australians access to information and to not facilitate government's further hiding of information.

We will continue to call for measures to hold this government to account, whether that be through more strongly enforced and independently administered ministerial standards, lower thresholds and real-time disclosures for political donations, or a strong, independent federal corruption watchdog. This is the least transparent government in history. It's the Canberra bubble. It's the words: 'We reject the premise of the question.' 'Cabinet-in-confidence' has been such an overused exemption to our FOI laws. You wheel something through the cabinet room, out it goes again and, hey presto, 'We don't need to tell anyone about it.' In terms of the Prime Minister's ministerial standards, you wouldn't even know whether or not he's applying them, although, if you look at the litany of scandals, it's pretty clear they're not being applied. But the process is so opaque that you have to seek to find out when they've been enforced. You aren't told about the process that's been used. Sports rorts is a perfect example there; we still don't have the Gaetjens report. There is absolutely no transparency about the enforcement, or otherwise, of those ministerial standards.

We still have no federal corruption watchdog. It's been almost one year since the Greens bill for a federal corruption watchdog passed the Senate, and it still hasn't been brought on for debate in the House of Representatives. The government initially used the excuse that they were going to introduce their own bill. In February of last year, they described that bill as 'imminent'. So, 18 months ago, their integrity commission bill was imminent. When I asked the minister about this unjustifiable delay, his excuse was the global pandemic, which has been on foot for six months—yet the bill was 'imminent' 18 months ago. So this excuse absolutely does not hold water. This government just can't hack scrutiny. It wants its ministers to be able to continue to engage in disreputable conduct and, often, in conduct involving conflicts of interest, and it wants them to continue doing so with impunity. We've seen executive powers used far more than is safe and robust for our democracy in this calendar year. The least we can do is tighten up FOI laws to make sure that members of the public and the media can access the information that they need, when they need it, at an affordable price.

The Greens will be supporting this bill, and we commend it to the chamber.

12:02 pm

Photo of Paul ScarrPaul Scarr (Queensland, Liberal Party) Share this | | Hansard source

It's a real shame that, on occasion, someone comes into this place and uses parliamentary privilege to gratuitously tip a bucket on someone else. It's a real shame on a number of levels. It's a shame because it denigrates everything else they say. As soon as any of us comes into this place and gratuitously tips a bucket on someone else, that detracts from everything else that is said—in this case, everything else that was said in the 15-minute speech that Senator Waters from my home state of Queensland just made. That's a real shame because, in that speech, there may have been some points for us all to reflect on, but the reality is that the opportunity was taken under parliamentary privilege to tip a bucket on, amongst others, the honourable Leader of the Government in the Senate. A whole shopping list of people had the bucket unceremoniously tipped upon them. That's a great shame, and I think my fellow senator from Queensland should reflect on that. That's all I have to say in response to her speech.

With respect to Senator Patrick, I have great regard and admiration for Senator Patrick. I think he performs an outstanding service in this place in raising issues which should be reflected upon by this place. He is an avid user of the Freedom of Information Act process.

Senator McKim interjecting

There are no 'buts', Senator McKim. There are absolutely no 'buts'. I'll take that interjection. I, Senator Scarr, can disagree with someone on points of policy but also have respect for them. I have difficulty respecting people who come into this place and use parliamentary privilege to tip a bucket, but I have respect for Senator Patrick. He has used the FOI Act process with great accomplishment on a number of occasions, and he should be commended for that. In fact, in preparation for my contribution on this legislation, I actually read one of the more recent decisions Senator Patrick led the Information Commissioner to make with respect to the disclosure of information in relation to the national submarine project. It was certainly a good way to prepare myself for this debate and to understand the intricacies of freedom-of-information legislation. So I do commend him on his contribution to this debate. I commend him for the work he's done in relation to the bill. There are many themes and points which he's raised in his contribution which have the intent underlying this bill and that I agree with a lot of as well.

However, whilst there's that respect, as matters of policy there are things that I disagree with, and I will turn to those shortly. One point I would make, though, generally with respect to all the comments that have been made on this debate so far, is that senators should remember that the FOI Act process provides that commercial parties, third parties and private citizens have a right to raise objections with respect to the disclosure of information under the FOI Act processes. It is not just government. It is not just the executive that can raise issues with respect to the disclosure of information under the FOI Act. Third parties whose information is referred to in FOI Act applications can also object, and they have a right to object under the process under the FOI Act, as Senator Patrick would well know. That is consistent across all jurisdictions in Australia. They have a right to object, their objections need to be considered and the rule of law needs to apply. So it is simply not the case that this is only about the applicant and government. It also can concern third parties.

In the Naval Group case which I referred to earlier, Naval Group actually objected to the disclosure of some of that information that was the subject of Senator Patrick's application. Their objections had to be considered and given weight to, and ultimately a decision was made as the commissioner saw was appropriate under the act. So I think that is something we need to bear in mind in relation to this legislation.

With respect to the other senator from Queensland who made a contribution on this debate, Senator Watt, I can certainly respect his contribution to this debate far more than I can that of Senator Waters from the Greens. I say to Senator Watt that, whilst his boyhood hero, Gough Whitlam, no doubt supported FOI Act legislation, it was one of my heroes, Malcolm Fraser, who actually brought it home in 1982 in a Commonwealth sense. So it was actually the coalition government that introduced the FOI Act into the Australian parliament in 1982.

The second point I would like to make in relation to Senator Watt's contribution is on how he talked about resourcing. I think it's a key point, to be frank. It's absolutely a key point. If we are going to have an FOI Act regime, there needs to be appropriate resourcing provided for it. It doesn't matter who's in government; there needs to be that appropriate resourcing. When I read the report of the Legal and Constitutional Affairs Committee, page 9, paragraph 2.9 says:

When asked whether there needed to be more resources at both the early resolution stage, as well as at a later stage, to enable more Information Commissioner reviews to be finalised earlier, Ms Falk stated:

At this point in time, that's not what I'm seeing. I'm seeing that where I need to focus is on working with government to increase the offices resources to increase the capacity at the case-officer level and potentially, the executive level. If that were to be increased and then have a flow-on effect to more Information Commissioner reviews being required of the commissioner and that being something that's not manageable within other functions then that would be something that I would bring to the attention of government.

Those are the actual words from the Information Commissioner in the report. In my respectful view, they do not support the characterisation of this matter by Senator Watt, from my home state of Queensland.

Having responded to some of the contributions made by other senators in this place, I would now like to provide my own observations to the Senate with respect to this matter. Firstly, I believe and I believe passionately that freedom of information legislation at all levels of government is absolutely essential to the workings of an open, transparent liberal democracy. There is absolutely no question about that. I think it yields scrutiny of government, I think it yields informed debate and I think it gives the public knowledge and information in relation to government spending, which, of course, is the spending of taxpayers' money. So there is no argument from me with respect to the importance of Freedom of Information. I think we've seen case and case again where information has been divulged through the freedom of information process. It is a very powerful tool to keep the government and the executive—no matter what party—to account. In doing this, the Information Commissioner has a key role regarding the consideration of exemptions.

I think it's worthwhile noting that there are two types of exemptions. There's the unconditional exemption or the conditional exemption, which is subject to a public interest test. In relation to unconditional exemptions, these cover things such as matters affecting national security, the disclosure of trade secrets and federal cabinet documents. I share the reservations of some other speakers with respect to—at all levels of government, no matter what their political party—whether or not federal cabinet, or state cabinet in my home state of Queensland, exemptions had been used in a way that perhaps was not intended. With respect to the conditional exemptions these concern things such as information about deliberative processes. Coming back to Senator Patrick's most successful review of a decision that was one of the matters which was considered—

Opposition senators interjecting

Five zero—I'm not surprised. You've had lots of practise! I'd be disappointed if you were less than five zero.

In relation to conditional exemptions, they have to be balanced against the public interest. The act does provide guidance with respect to that public interest weighting. On one hand you're looking at scrutiny and on the other hand you're looking as to whether or not things such as deliberative processes would be impacted in such a way as to mean it was against the public interest for information to be disclosed. On this point, we must remember what the factors are which should not be taken to be against the public interest in terms of disclosure. Factors which should not be taken into consideration include embarrassment, misunderstanding or confusion. They are not excuses for refusing to release information.

I commend the Information Commissioner in relation to the judgement I referred to before. I think it was a very good judgement. It certainly acted as a tutorial for me in terms of getting up to speed with this debate.

I now turn to the report of the Legal and Constitutional Affairs Committee which recommended against adoption of this bill. However, as I've been saying during this contribution, it did say that there were elements of this bill which are certainly worthy, at least in terms of their intent. I have spoken about the need for there to be adequate resources with respect to the support of FOI Act processes. I think that is an important point.

One point Senator Patrick touched on was the need to have legal qualifications. I did reflect on this as I was reading the case. It seemed to me that, to some extent, at first blush what is perhaps needed more than a lawyer is common sense and practicality. I think with a lot of these concepts where someone will say, 'This is commercial-in-confidence' or 'This is something which is going to impact the deliberative processes of an executive agency' you really need a bit of common sense and practicality to make that assessment. I can't see any reason why, whoever the decision-maker is—provided that they have access to appropriate legal advice—that decision-maker can't actually make that decision based on common sense and practicality. Examples have been given with respect to a previous holder of the relevant commissioner position, Mr Timothy Pilgrim, who did not have a legal qualification but who apparently discharged his obligations quite professionally in this regard. So I don't agree that you need to have a legal qualification. I don't believe that lawyers are the answer to everything. Provided there is access to appropriate legal advice, in this case there could be some benefit in having someone who's got a bit more practical experience making a judgement as to whether or not something should be exempt or not exempt.

With respect to the timing on publication, I think Senator Patrick makes a very good point on the position of journalists. I think it is fair to say that, if a journalist has spent a terrific amount of time and invested resources making an FOI Act application, it would be disappointing for that journalist, having got to the end of the process, to have managed to procure the relevant documents through that process, for those documents to be dumped in the public domain without the journalist first having an opportunity to review them and to do whatever the journalist thought they should do with those documents.

However, as I understand it, there are guidelines in place which are meant to take into account factors such as that. I'm happy to hear whether or not those guidelines are working as they're intended to work, but certainly the information I've been provided with is that there are guidelines which are there in order to take into account matters relating to the timing of disclosure. But, in that regard, we should always remember that, once it has been decided that the document should be made public, it should then be made public, and, to some extent, it is then outside the realm of the original applicant. It's a matter for the polity at large; it's a matter for the community at large to have an interest in those documents being made public. I think the two elements need to be weighed, but, given how nuanced the discussion could be in a particular case, it is a matter which could be more appropriately dealt with in the guidelines.

With respect to charges, I do note that section 29(5) of the Freedom of Information Act provides that an applicant can contest a charge for access and that that will be considered on the basis of whether access is in the general public interest. Again, I'd be interested to know how that works in practice, but there is a process there for charges to be waived. I think there is a bit of tension—on one hand, seeking additional resources for Freedom of Information Act processes and, on the other hand, raising questions over whether or not there should be charges involved in terms of accessing those documents. Certainly, in some cases, Freedom of Information Act applications can be extremely wide-reaching and cover huge amounts of documents, and I think the two competing interests need to be balanced in a reasonable way.

The last point I'd like to make is with respect to referrals to the Administrative Appeals Tribunal. It does concern me that that proposal may simply be a matter of kicking the can down the jurisdictional road. So all you're doing is feeding into another traffic block, if you like, and congestion down the jurisdictional path. You're simply pushing the issue down to the AAT when, if there is an issue, it needs to be resolved earlier in the phase.

Photo of Sue LinesSue Lines (WA, Deputy-President) Share this | | Hansard source

Thank you, Senator Scarr. Senator Chisholm, you've got about three minutes.

12:17 pm

Photo of Anthony ChisholmAnthony Chisholm (Queensland, Australian Labor Party) Share this | | Hansard source

I think that it is an opportune time to be having a debate on this issue, given the role parliament has played this year and the constraints within which we have been operating. Given the commentary that was provided last week by the Senate President, no less, around parliament and its ability to provide scrutiny of government, today is an opportune time to be discussing this bill. I acknowledge the words earlier of Senator Watt, who outlined Labor's position on this bill, and I also acknowledge the Legal and Constitutional Affairs Legislation Committee report into this, which was done in the last term of parliament, before I became a member of that committee.

I also want to acknowledge the work of Senator Patrick in this regard. Whilst I often find things that I disagree with Senator Patrick on and very rarely would I ever say anything nice about him inside or outside this chamber, he is well intentioned, very determined, relentless and, indeed, principled on these matters. Having dealt with him around OPDs and so forth in the last parliament, I know Senator Patrick always made a principled decision on those. He would provide support to those on every occasion that I went to him on something like that. So he is very consistent.

I want to talk a little bit about the work that I've been doing as the chair of the inquiry into the granting of sports funding. I think what we've seen through the course of this year is that the government, basically, have looked for every opportunity to avoid scrutiny, to avoid transparency and to avoid accountability, and they have exploited that. Of the examples that I have been involved with this year, there has been no better example than the inquiry into the granting of sports funding, which saw the resignation of a minister, no less. But still the government are reluctant to release the documents they have on their decision making. We still do not have access to the infamous colour coded spreadsheet. What was provided to us was a redacted copy from which all the information that is relevant to us doing our job was basically blacked out.

Photo of Sue LinesSue Lines (WA, Deputy-President) Share this | | Hansard source

Thank you, Senator Chisholm. The time for this debate has expired. You'll be in continuation.