Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

I present the report of the Legal and Constitutional Affairs References Committee on freedom of information laws, together with accompanying documents. I move:

That the Senate take note of the report.

The Commonwealth FOI system is not fit for purpose. The resignation of Mr Leo Hardiman PSM, KC as Freedom of Information Commissioner, on 5 March 2023, is a symptom of a dysfunctional, broken and underfunded Commonwealth FOI system. Mr Hardiman was not prepared to continue in his position of FOI Commissioner because he genuinely believed he did not have the power or the resources to discharge his statutory obligations, the obligations which this parliament, this chamber, imposed upon that position. Mr Hardiman was not prepared to be passive under the status quo. It was in these circumstances that Mr Hardiman made the decision to resign. A majority of the committee considered this to be a position of integrity.

As a direct result of Mr Hardiman's resignation, and with the referral from Senator Shoebridge, who served on this committee, this inquiry was established. As a direct result of Mr Hardiman's resignation, a majority of the committee, the coalition members and the Greens, now make the recommendations contained in this report.

We call for additional resourcing and urgent reform to fix the broken system. We call for statutory time limits for the conduct of information commissioner reviews. We call for a recalibration of information commissioner reviews so the decisions can be issued with the minimum of formality—an ombudsman-like process, with full merits review occurring only at the AAT level. This should expedite the process. We call for reform of the ridiculous situation whereby access to documents can be denied under the FOI system because there has been a change of minister—exactly the situation where the public interest may well demand the disclosure of documents. We call for the streamlining of processes for access to personal information so that such applications do not clog up the FOI process.

We call for reconsideration of the three-commissioner model. And we do not call for this as a matter of ideology, as a matter of partisan politics; we call for this because we genuinely believe that the three-commissioner model has failed and needs to be reformed. We recommend that the FOI commissioner be relocated to the Office of the Commonwealth Ombudsman, and in support of this recommendation we note the increasing obligations of the Office of the Australian Information Commissioner with respect to privacy and data protection matters—an increase that could not have been reasonably anticipated at the time of the establishment of the three-commissioner model.

As I said, this is not party political. This is a genuine, good-faith recommendation to address a failure of the system under the current circumstances. We note that the Commonwealth Ombudsman currently undertakes an FOI review function for the ACT government. And we note the very persuasive evidence of Professor John McMillan, who served as the Australian Information Commissioner under the three-commissioner model between 2010 and 2015. This is what he said—Professor McMillan's words, not mine:

While I still believe … in the original OAIC concept, I accept that it may be time to rethink …

At any rate, it seems hard any more to justify a three commissioner model for the OAIC, particularly when that office does not herald its separate information policy function.

Those are the words of Professor John McMillan, Australian Information Commissioner between 2010 and 2015.

We make other recommendations, all in good faith and intended to address the backlogs, the dysfunction and the failure of the FOI system to achieve its objectives. An area of particular concern for Mr Hardiman was the chronic backlog of information commissioner reviews of FOI decisions made at an agency or departmental level. The number of backlogs is a key statistic. How do we know this? We have, under FOI, the brief for the Australian Information Commissioner given to her by the OAIC prior to her giving evidence.

On the first page of the brief, under the heading 'Key statistics', are the ages of information commissioner reviews. Those are reviews of original decisions, quite often decisions not to release documents, ongoing at the period close. The date of this table is as at 30 June 2023. And listen to these statistics. This is a system that is broken, and this is exhibit A of a broken system: age of IC reviews ongoing at period close, greater than 48 months—that is more than four years—86; between 36 and 48 months, which is three to four years, 227; between 24 and 36 months, which is between two and three years, backlogged in the system, 342; and between 12 and 24 months, 561. That is 1,216 information commission review applications that have been stuck in the system for more than one year. How many documents could have been released under those applications? But disclosure was refused and the appeals are stuck in the system. This is exhibit A of a broken system. These statistics need to be made public. They should be given prominence in the annual report of the Office of the Australian Information Commissioner. They should be on the first page of that report. We shouldn't have to go through estimates process and an inquiry process in order to extract those key statistics. These key statistics tell the story of the state of health of our FOI system. It isn't fit for purpose. Urgent reform is required.

One final matter: Mr Hardiman raised serious questions regarding employee welfare within the OAIC. I quote from page 53 of the majority report:

Mr Hardiman told the committee that several staff members within the FOI branch displayed 'symptoms of unhealthy work stress and traumatisation'.

Just reflect on that: traumatisation. I note that the OAIC has strongly contested many of Mr Hardiman's allegations. The OAIC response is clearly acknowledged in our report. The OAIC, in its response, has referred to progress on HR matters as measured by their own survey, but let me go to the Information Commissioner's own brief, prepared by her own agency in this regard. Under 'Takeaways from the 2023 employee census', here are some positive results:

It was a pretty poor result in 2022, but there's an improvement. Then we turn to the next page, which states:

The OAIC results saw a 5pp increase in the number of employees reporting they strongly agree or agree with feeling burned out by their work.

That includes 44 per cent in the FOI branch. On the next page we have this startling paragraph:

Eleven per cent of staff say they were bullied or harassed.

Eighty-seven per cent of the staff say they weren't bullied or harassed. I wonder what the corollary of that is.

There needs to be reform, there need to be additional resources dedicated to the FOI process. Never again should there be a backlog of Information Commissioner reviews like that which exist today. Never again should a former senator—former senator Rex Patrick—have to go to the Federal Court to try to expedite IC reviews. I note that the appeal of the original decision is laid down for the full bench of that court on 26 February 2024. Never, ever again should an FOI Commissioner find themselves in the position of Mr Leo Hardiman and feel compelled to resign as a matter of integrity. I commend this report to the Senate and seek leave to continue my remarks later.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

I rise to echo the comments of Senator Paul Scarr, who chaired the inquiry into the freedom of information system at a Commonwealth level. It was remarkable, the evidence we heard in that inquiry. You could arrive at only this conclusion: that the FOI system is broken. It's not achieving transparency, it's not achieving timeliness, and many people have given up on it as a tool for finding critical information about how the Commonwealth government works. It is literally broken.

The statistics about delay, and the delay that centres in the Office of the Australian Information Commissioner, the OAIC, are particularly telling. There are hundreds and hundreds of matters that are more than three years old in that office. Reviews—often for critical government information—have taken at least three years to be delivered. Some are still clogged in that system five years after they were lodged with the Office of the Australian Information Commissioner. As Senator Scarr made clear, we only know that critical information about the freedom of information system because we squeezed it out of the government and the OAIC in budget estimates and in this inquiry. Astoundingly, these key statistics are not even reported on by the Office of the Australian Information Commissioner. You could not make it up.

The evidence that we got from former FOI commissioner Hardiman was also particularly telling. I want to be clear that Mr Hardiman struck me—and I think the majority of the committee, if not all of the committee—as a credible, decent public servant who sought to do what he could in a system that was starving him of funding and deeply disrespectful of his expertise. He struggled on as best he could, but he was doing it in an office that seemed to be consciously structured to prevent the FOI division in the OAIC from having the funds and resources it needed to do its work.

You don't have to just believe me or the committee report. In the now disclosed APS survey, when the FOI division of the OAIC were asked about the performance of the group and were asked whether their work group has the resources needed to perform, 63 per cent of people in the FOI group said no, 13 per cent were neutral and only 25 per cent said yes. That 63 per cent is double the rate that we find in the overall APS survey of other agencies.

Mr Hardiman's complaint was that the current OAIC commissioner deliberately withheld funding from FOI and did so in circumstances where she thought she was complying with a political direction from a former Attorney-General. It was extraordinary and it was contrary to the legal position that allows agency heads to move funds around within their agency to meet the most pressing needs.

Of course, the committee was not the place to finally resolve all of those elements of workplace dysfunction and organisational dysfunction—we couldn't run every rabbit down every rabbit hole—but what we heard was so disturbing and so troubling that the first recommendation was to have an urgent independent review of those workplace issues raised by Mr Hardiman in the OAIC. That is urgent work. That is why I was astounded to see that just a few weeks before we released this report the Attorney-General thought it prudent to appoint two fresh statutory officeholders to the OAIC without first addressing the extensive management and organisation failures we observed. I believe that that's an action that puts at peril both of those officeholders who go into an office where there is such compelling evidence of dysfunction and managerial failures.

Not to address that before appointing two new statutory officeholders—what was the Attorney-General thinking? It's not as though he wasn't aware of the evidence. There were Labor members on the committee. Much of this evidence was in public. How could the Attorney in good conscience have appointed two new statutory officeholders knowing that this dysfunction was in place, without first addressing it? It is genuinely unbelievable.

I wish both of those appointees every positive wish that I can. They go with the Greens' good wishes, but they go with our very real concern for what they will face as they seek to undertake their essential statutory functions in that office. It was an extraordinarily arrogant step of the Attorney to simply ignore the evidence we saw in that committee and to pretend that you could just appoint two people and it would work. Extraordinary.

This committee, I believe, operated in a nonpartisan fashion. We had very difficult evidence to deal with and we could have delivered a report that was excoriating of individuals. We endeavoured not to do that and to recommend an independent review. We also recommended some structural changes because—as a former Commonwealth Ombudsman found and as many of the witnesses said—putting the privacy functions together with the FOI functions creates an inherent tension because much of privacy is about keeping information secret and not providing it to third parties, whereas the core function of FOI is to put as much information as possible into the public domain. They obviously have significant tensions, and those tensions have only increased as the sheer amount of work required in the privacy space has grown and grown—and for good reason. No-one begrudges the work in the privacy space, but the fact is that work in the privacy space has been happening for the last near-decade at the expense of literally stripping every marginal resource out of FOI. That has led to the FOI system sort of grinding to a halt.

I would have hoped that we would have had better than the dissenting report from the government on this, which seeks to suggest that this recommendation was, somehow, a partisan attack on the OAIC. Far from it. It was a reluctant conclusion that that experiment has not worked. It was a reluctant conclusion we came to because that's where the evidence compelled us. There are good, principled reasons to disassociate those, not to throw the FOI system into its own tiny little agency but to embed it in an agency that has a similar kind of public purpose—which is the Ombudsman's office. In South Australia that's where it's found anyhow, and many of the witnesses we had said the South Australian model is actually pretty bloody good.

What were the other critical recommendations we had? They were to simplify the process and remove an often wasteful internal review and instead put those agency resources into getting the primary and first decision right; to spend the resources where they're best spent, which is getting the initial decision right; and to remove internal reviews and then have the first independent merits review done without the requirement to deliver lengthy, near-judicial reasons. Make that quick and make that a decision-making process rather than a judgement-making process, with an empowered and well-resourced FOI commissioner, and then give ready access to the AAT for a full merits review. That's a model that will work. That's a model that will simplify and speed up the process and make it about freedom of information, not freedom from information, which is what the current system is. None of it will work—not the existing system and not the reformed system—without a significant increase in resources to deal with the backlog and make it fit for purpose.

Hollie Hughes (NSW, Liberal Party, Shadow Assistant Minister for Climate Change and Energy) Share this | Link to this | Hansard source

Senator Shoebridge, your time has expired.

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

I seek leave to continue my remarks later.

Leave granted; debate adjourned.