Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Link to this | Hansard source

Freedom of information laws are essential to Australia's 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 has long championed freedom of information laws. The establishment of a Commonwealth FOI Act became part of Labor's policy platform in 1972. With characteristic farsightedness, Gough Whitlam first called for an FOI law in a speech as opposition leader. Though these laws were not passed for another decade, it is yet another example of the reforming vision that characterised Gough Whitlam's political work and which reinforces his place in history as one of the great leaders of this nation.

Since FOI laws were first introduced in state jurisdictions in the 1970s, Labor has worked to strengthen these laws to improve transparency in government and to champion the public's right to know. Before the 2007 election, the federal Labor Party committed 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. As that document made clear, the object of the overhaul was to restore trust and integrity in the use of Australian government information and to promote openness in government.

Unlike the present government, which specialises in nasty surprises and broken promises, 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 three separate pieces of legislation in 2009 and 2010. The first of the three acts was the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009 which, among other reforms, repealed the power to issue conclusive certificates for exemption claims under the act; abolishing conclusive certificates gave jurisdiction to the Administrative Appeals Tribunal to undertake a full merits review of any exemption claim brought before the AAT. The other two acts passed in 2010 were the Australian Information Commissioner Act 2010 and the Freedom of Information Amendment (Reform) Act 2010. Again, in a good piece of legislative work, they were first released as exposure draft bills, then introduced to parliament before passing and coming into effect on 1 November 2010.

A key feature of these improved laws was the establishment of the Office of the Australian Information Commissioner as part of the Australian Information Commissioner Act 2010. 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, legal experts and the media. Taken as a whole, the reforms introduced by the three acts I have mentioned were the most substantial reform to Australia's freedom of information scheme since it was established in 1982.

Speaking on Labor's reforms to FOI law in the other place on 13 May 2010, Special Minister of State, Senator Ludwig, noted that:

The passage of the FOI Act was a milestone for Australia. 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.

The Australian Information Commissioner Act 2010 established as a statutory body the Office of the Australian Information Commissioner and introduced the statutory positions of Australian Information Commissioner and Freedom of Information Commissioner. The Office of the Australian Information Commissioner has a comprehensive range of powers and functions which are intended to provide independent oversight of privacy and FOI. The OAIC also develops information policy and management across Australian government agencies.

The inaugural Australian Information Commissioner, Professor John McMillan AO, was appointed on 1 November 2010. The commissioner has been ably supported by two statutory officers: the Privacy Commissioner and the Freedom of Information Commissioner. Mr Timothy Pilgrim was appointed Privacy Commissioner for five years from 19 July 2010 and Dr James Popple was appointed FOI Commissioner for five years from 1 November 2010. I take this opportunity to commend Professor McMillan, Mr Pilgrim and Dr Popple for the excellent service that they have provided to the Commonwealth in their respective roles up to this time.

Unsurprisingly, I regret to say, given its liking for secrecy the Abbott government is now seeking to abolish the Office of the Australian Information Commissioner and to introduce other measures to close the door on open government in our nation—and it is doing so without any mandate from the public that elected it. This is a government that wants to hide what it is doing from the Australian public and, when you look at what we do know about what the Abbott government is doing, you can see why they would want to be hiding. This government has been seeking to work in secrecy and to avoid its obligations under the existing FOI Act since it came to office.

The changes in this bill, gutting the public's access to information about what this government is doing, were first announced on budget night. There was no prior consultation—and there has been none since. Notably in introducing these reforms the Abbott government appeared to ignore the comprehensive and independent review of the Freedom of Information Act 1982 and the Australian Information Commissioner Act 2010 completed only last year by Dr Alan Hawke AO. In his review Dr Hawke found that the Labor reforms to FOI were 'working well and having … a favourable impact in accordance with their intent' and 'that the reforms have been operating as intended and have been generally well-received.'

In his review delivered to me as Attorney-General in July 2013 Dr Hawke made a range of practical, helpful and thoughtful recommendations for the improvement of the Commonwealth's FOI scheme. I regret to inform the House that this government has entirely ignored Dr Hawke's recommendations. There is not even a reference to the review conducted by Dr Hawke—and reported on in July last year—in the second reading speech introducing this legislation to the House.

It is worth noting that in advocating for the measures in this bill in a media release dated 13 May 2014—budget night—Senator Brandis, as Attorney-General, argued:

Simplifying and streamlining FOI review processes by transferring these functions from the OAIC to the AAT will improve administrative efficiencies and reduce the burden on FOI applicants.

This is patent nonsense—or, as Professor Richard Mulgan of the Australian National University described the Attorney-General's statement, 'deceitful sophistry'.

The truth is that this bill would abolish the opportunity that members of the public currently have to request the independent Information Commissioner to review a refusal by the government to provide documents under FOI. This right is currently exercisable at no cost to the applicant, but by abolishing the independent Information Commissioner the Abbott government will force anyone wanting an independent review of a government decision to refuse to provide documents under FOI to go to the Administrative Appeals Tribunal where the filing fee alone is over $800. Only the Abbott government could argue that introducing this new regime of heavy fees to replace free, independent oversight will 'reduce the burden on FOI applicants'.

This bill is clearly part of the Abbott government's plan to avoid scrutiny by the public that elected it. This bill about weakening freedom of information in Australia comes from a government desperate to hide what it is doing from the Australian people. This is a bill which should be opposed.

Sharon Claydon (Newcastle, Australian Labor Party) Share this | Link to this | Hansard source

I join with my Labor colleagues in opposing the Freedom of Information Amendment (New Arrangements) Bill 2014. As noted, this bill amends the Freedom of Information Act 1982 and repeals the Australian Information Commissioner Act 2010, as well as making consequential changes to other legislation, for the purposes of implementing the Abbott government's 2014-15 budget measure 'Smaller Government—Privacy and Freedom of Information functions—new arrangements'. The bill will repeal a number of incredibly sensible amendments that were introduced by the Rudd government in 2009 and 2010 to improve transparency across government by strengthening the freedom of information regime and establishing the Office of the Australian Information Commissioner, or the OAIC.

Specifically, the bill seeks to abolish the OAIC and the positions of Australian Information Commissioner and Freedom of Information Commissioner; provide for an Australian Privacy Commissioner as an independent statutory office holder within the Australian Human Rights Commission, AHRC; provide that external merits review of FOI decisions will only be available at the Administrative Appeals Tribunal; provide for the Attorney-General to be responsible for FOI guidelines, collection of FOI statistics and the annual report on the operation of the FOI Act in place of the Information Commissioner; and, finally, provide for the Commonwealth Ombudsman to be solely responsible for investigating complaints about FOI administration.

This is a bill from a government that continues to try to pull the wool over the eyes of the Australian people. The measures in this bill are very much in keeping with this government's preferred modus operandi of silence and secrecy. This is a government that says one thing before the election and does the exact opposite after being elected, a government that announces and acts without consultation and then draws up the veil of secrecy to hide behind—when it suits them, that is. It is a government determined to block the public from knowing what they are doing and how their actions will affect those to be impacted.

The government's first budget was so cruel that it is little wonder that members opposite tried hard to bury as much of the detail as possible. A glaring example was, of course, the failure to publish a Women's Budget Statement for the first time since 1984. Rather than deal with the impact their budget would have on women up-front, they tried to bury the detail in volumes of budget papers. The Women's Budget Statement was introduced 30 years ago has an important equity measure to single out initiatives that directly target women.

Paul Fletcher (Bradfield, Liberal Party, Parliamentary Secretary to the Minister for Communications) Share this | Link to this | Hansard source

Point of order on relevance. This is a debate about freedom of information and not the Women's Budget Statement.

Russell Broadbent (McMillan, Liberal Party) Share this | Link to this | Hansard source

I do not think there is a point of order. We have been free ranging with these issues.

Sharon Claydon (Newcastle, Australian Labor Party) Share this | Link to this | Hansard source

When questioned on why the government had failed to produce the report, the Minister Assisting the Prime Minister for Women said:

There will not be a Women's Budget Statement this year. The Government prepared a small number of budget statements and highlights which focused on key areas of reform which are pivotal to all Australian's, regardless of gender.

But the facts of the budget were very clear. There were so many measures that impacted negatively on women that this government should, at the very least, have produced a dedicated statement outlining the implications for what this would mean. The production of the statement by previous Labor governments was not a PR exercise, as has been claimed by members of the government; it was an important measure of openness, transparency and equity. Indeed, it goes to the point of order just raised by the member opposite, who asked about the relevance. The point being that this is a government that lacks openness and transparency when dealing with the Australian public. That was one example.

Even the Howard government saw the merits of producing the Women's Budget Statement. The reason for hiding the impact that this year's budget had on women was likely because of the harm it was due to cause. As Marie Coleman, Chair of the National Foundation for Australian Women's Social Policy Committee, made clear:

This is a Budget that will hurt practically every woman—whether a single parent, unemployed, in the workforce, studying or a homemaker. Very few will remain unscathed.

When releasing their own financial analysis of how budget measures will affect women, Ms Coleman said that not releasing a statement reduced transparency in federal government reporting and accountability.

We have seen the government try and hide from their own budget papers and the facts that contradict their statements time after time in this House. What next? No budget papers available to the public at all?

Freedom of information and transparency of government is essential to ensure the health of Australia's democracy. It gives the Australian public and media access to information about what the government they elected is doing in their name. It is a very important tool in providing an open and transparent government. At a time when we are looking to extend security powers, it is vital that we find a balance in law that ensures and maintains strong and effective accountability of government. Public trust and confidence in our security and intelligence agencies can only be assured through strong and rigorous oversight and scrutiny.

Since FOI laws were first introduced in Australia in the 1970s, Labor has worked to strengthen these laws to improve honesty and transparency in government, and to champion the publics' right to know. In 2010 the federal Labor government established the Office of the Australian Information Commissioner to provide independent oversight of the FOI regime and to champion freedom of information right across government. Unsurprisingly, the Abbott government is now seeking to abolish the Office of the Australian Information Commissioner. This government has been seeking to hide what it is doing from the Australian public and to avoid its obligations under the existing FOI Act since it came to office.

A classic example of this is being undertaken by the minister responsible for FOI law himself. The Attorney-General claims that processing a simple request to release his diary for his first six months in government would unreasonably interfere with the work of his office and has refused an FOI request to do so. This is despite world leaders, who I would suggest have far more on their plate than our Attorney-General—like the UK Prime Minister David Cameron, US President Barack Obama and former Prime Minister Julia Gillard I might add—all publicly publishing their schedules as a matter of course. The minister responsible for FOI laws should be setting the standard for openness and accountability, not denying reasonable applications and hiding behind poor excuses.

The changes to FOI before us today were first announced on budget night. There was no prior consultation and there has been none since. In advocating for these laws in a media release dated 13 May 2014, it was Senator Brandis who argued:

Simplifying and streamlining FOI … processes by transferring these functions from the OAIC to the AAT will improve administrative efficiencies and reduce the burden on FOI applicants.

In fact, the government is purporting to be improving efficiency and reducing the burden on FOI applicants by actually pricing out most of the would-be applicants.

Peter Timmins, a lawyer and blogger on FOI issues defends the OAIC notwithstanding the backlogs and time delays experienced by applicants, which he says have been due to under-resourcing, noting that that office at least gave people the right to make an application for review without fees. He makes the point that the change to the AAT review will in fact place FOI review back into the realm of very expensive legal representation.

Professor Richard Mulgan of the Australian National University described the Attorney-General's statement as 'deceitful sophistry', as was mentioned by the shadow Attorney-General. The recently released OAIC annual report revealed that the office is in fact improving efficiencies significantly without meddling from the Attorney-General or pricing average citizens out of challenging decisions.

In 2013-2014, the Information Commissioner indicated that many problems of backlog had been resolved and the office had improved response times despite a significantly increased workload. In his media statement releasing the annual report, the Australian Information Commissioner, Professor John McMillan AO, said:

The OAIC made excellent progress in resolving freedom of information (FOI) matters, completing 646 Information Commissioner reviews, an increase of 54% from last year. Another success was to reduce the time taken to commence work on new review applications, down from 206 to 40 days.

The OAIC also processed 2,456 extension of time requests and notifications and responded to 1,903 phone and written enquiries about FOI. This dramatic improvement is evidence that in just the first two years of operation the OAIC is making real progress in providing information to the Australian people and helping to ensure open and transparent government.

The simple truth is that this bill would abolish the opportunity that members of the public currently have to request the independent Information Commissioner to review a refusal by the government to provide documents under FOI. This right is currently exercisable at no cost to the applicant; but, by abolishing the independent Information Commissioner, the Abbott government will force anyone wanting an independent review of a government decision to refuse to provide documents under FOI to go to the Administrative Appeals Tribunal, where we know the filing fee is over $800. It is a fee that would put lodging an appeal beyond the reach of most citizens. A right to access information should not be determined by the size of your wallet.

Only the Abbott government could argue this new regime of heavy fees to replace an independent oversight which is currently free would allegedly 'reduce the burden on FOI applicants'. This bill is clearly part of the Abbott government's plan to avoid scrutiny by the public that elected it. This bill is about weakening freedom of information in Australia by a government desperate to hide what it is doing.

The Information Commissioner, Professor McMillan, has said:

The OAIC's vision has been an Australia where privacy and information access rights are respected and public sector information is managed in the public interest.

This is a vision that is absolutely worthy of defence. Scrutiny of government is necessary—indeed essential—for a healthy democracy. It should happen independent of government and at arm's length, not in the office of the chief lawmaker. The small savings outlined in executing the measures contained in this bill cannot in any way justify the gutting of an entire FOI system—a new system that has just started hitting its stride in making sure that government is operating in an honest, open and transparent manner. The Australian people deserve no less from their elected representatives.

This bill is a massive overreach on the government's part, and I join with my Labor colleagues in opposing this bill and standing up for an open and transparent government instead.

Graham Perrett (Moreton, Australian Labor Party) Share this | Link to this | Hansard source

I also rise to speak on the Freedom of Information Amendment (New Arrangements) Bill 2014. It is a bill designed to implement the new arrangements to deliver privacy and freedom of information functions as outlined in the 2014 Abbott government budget. I commend the member for Newcastle for her contribution and the shadow Attorney-General, the member for Isaacs, for his contribution. I note their particular commitment, both in government—for the member for Isaacs—and in opposition, to open and transparent government.

Sadly, sometimes people who speak loudly when in opposition change their tune when in government. That seems to be what we see at the moment. These measures before the chamber include the repeal of the Australian Information Commissioner Act 2010 and amendments to the Freedom of Information Act 1982, the Privacy Act 1988, the Ombudsman Act 1976 and other acts.

To understand the culture of government, oppositions and their approach to open and transparent government we need to go back a little and explain why the Labor opposition will be opposing this legislation. Freedom of information, or the statutory right of access to government documents, is always a good thing in that it encourages transparency and political accountability and discourages any corruption and other forms of wrongdoing. As a member of parliament from Queensland I know how hard it can be to have that sort of transition. I remember the seventies, when the Bjelke-Petersen government had a completely different attitude to transparency, government accountability and even to the separation of powers.

Australia was actually a leader in the Westminster style democracies in introducing FOI laws in the 1970s and 1980s across a variety of jurisdictions. However, over time the reforms that were rolled in have been shown to be inadequate. There was a minimum of cultural change in government, and a presumption in favour of disclosure was not practised across government. Lots of people were receiving documents containing black lines throughout. Governments were hiding things through commercial reasons or administrative reasons or reasons designed to stymie the flow of information rather than make governments accountable to the public.

There has generally been a view that government agencies could exploit all of the restrictions and gaps in FOI laws to make it more difficult for the public to gain access to government information, especially information that might be politically embarrassing to the government or to the agency. That is not a reason to conceal information. I recently had an FOI request made on my military service records. I do not know what that was about: I was not able to find out who had made the application, but I was quite happy for it to be revealed. I have not heard anything more from it, but it made me, in having my conversations with the decision maker and the defence, understand the decisions that are made by departments.

The bill before the chamber that the Abbott government has proposed will do a number of things. It will abolish the Office of the Australian Information Commissioner, the OAIC, and the positions of Australian Information Commissioner, Privacy Commissioner and Freedom of Information Commissioner. It will provide for an Australian Privacy Commissioner as an independent statutory officeholder within the Australian Human Rights Commission. My understanding is that those arrangements are actually in place as we speak. It will also provide that external merit reviews of FOI decisions will only be available at the Administrative Appeals Tribunal. The AAT obviously costs money—money that a media organisation or a billionaire miner might have, but perhaps not money that a member of the public might have. The changes will also provide for the Attorney-General to be responsible for FOI guidelines, the collection of FOI statistics and providing an annual report on the operation of the FOI Act rather than the Information Commissioner, who was more at arms-length from the government. The changes will also provide for the Commonwealth Ombudsman to be solely responsible for investigating complaints about FOI administration.

In 2009-10 the Rudd Labor government introduced major FOI changes with the principal intention being to promote a pro-disclosure culture across the Commonwealth government that would then build a stronger foundation for more openness in government. These reforms, although potentially risky for the Labor government, were wide-reaching and they affected all aspects of the FOI laws: access procedures, FOI charges, exemption criteria, FOI objectives, the procedure for review of disputed decisions, and publication of information by agencies and FOI reporting by agencies so that they were actually more accountable for what they were concealing as well as what they were revealing.

A major part of those Labor government FOI reforms was the establishment of that new statutory agency, the Office of the Australian Information Commissioner. It served an important role. The previously freestanding Office of the Privacy Commissioner was integrated into the new arrangements and two new statutory positions were established: the FOI Commissioner and the Information Commissioner. The OAIC was then given a comprehensive range of powers and functions to provide that independent oversight of privacy and FOI and advance information policy and management across Australian government agencies.

As I said, these commitments were made when we were in opposition and while it took a while—there was a little bit of debate, and perhaps it was not a perfect mechanism—it was rolled out by the Rudd and Gillard governments. The OAIC was welcomed by FOI advocates, including voices in the media. I know there was the odd person who said it was not the completely right structure, but nevertheless I think overall it was accepted by those who support open and transparent government that this significant shift was a good thing.

One of the problems with the new two-tiered system was rolling it out and having public servants process the applications in time. Obviously we did learn from some of the other jurisdictions—the United Kingdom, Canada and several Australian states—and where they had improved the process. There was more to be done; it had only been introduced a relatively short number of years ago really. So the 2010 changes brought this new two-tiered system of external merit reviews of FOI decisions. The first review was conducted by the Information Commissioner and the second was by the AAT. Obviously the advantage of the Information Commissioner review was that it could be undertaken without prior internal review, without legal advice—obviously a good thing because not everyone was able to afford lawyers—and without application fees.

We are talking about the very foundations of our democracy in that the government is responsible to the people. The building we are in was designed upon those principles. There is a line straight through the building—from the public area to straight under the flagpole and through to the cabinet room—to the Prime Minister's desk. That is the line because the people should have a direct line of access to the government and FOI is a part of that process, making sure that governments are accountable to the people. Obviously, these two chambers that intersect that line of power play a role, but we should never forget that people should have direct access to their government, to the executive.

The 2013 review by Dr Hawke—it was a requirement of the legislation that it be reviewed—noted that the reforms brought in by the Labor government had been operating as intended and had been generally well received. There were a few questions about the new two-tiered FOI merits review process. I think they were particularly raised by some people in the media, but, nevertheless, over all, because the new mechanism had only been operating for a while, it was given the tick of approval. So the Labor opposition were a bit surprised when the government announced the abolition of the Office of the Australian Information Commissioner in the budget—on that horrible night when the budget was visited upon the Australian people. So many horrible things. That budget was a betrayal of all that is decent and Australian, I would suggest, and hence the problems for those opposite trying to sell it. So that announcement of the attack on FOI was completely unexpected. It was not in the National Commission of Audit recommendations at all, there was no mention of it at all, so it was a surprise. The budget measure relating to the OAIC was explained as follows:

From 1 January 2015, the OAIC's status as an agency under the Financial Management and Accountability Act 1997 will cease and funding for ongoing functions will be transferred to other agencies.

The foundation blocks of democracy are open and transparent government, and for this small saving they were going to sacrifice one of those features of good government.

Two of the three commissioner positions—the FOI Commissioner, James Popple, and the Information Commissioner, John McMillan—are to be abolished but the Privacy Commissioner, currently Timothy Pilgrim, who does good work and has appeared before a number of committees that I have either chaired or been a member of, is to be transferred to the new position of Australian Privacy Commissioner operating independently within the AHRC. Obviously there would be some redundancies, and the budget papers estimate a saving of 23 positions, so making sure that there are enough people to do the job of providing freedom of information will be a challenge.

With those comments, I think I have explained clearly why Labor is opposing this piece of legislation. The OAIC has only been operating for three years, and that is a very short time to get a new body humming—obviously, there are always some teething problems for any department when they are combining and making sure that they are getting all their systems set up—so disbanding that body is very premature. The Information Commissioner review showed that there had been a jump of 54 per cent in the number of completed Information Commission decisions, up from 419 to 646, and the time lag going in opening new cases had been reduced from 206 days down to 40 days, which I would suggest is not an unreasonable time. They were definitely just finding their feet in terms of being able to process requests and make sure that the commonwealth government is held to account by those who seek information.

The Attorney-General has argued that the changes will lessen the burden on FOI applicants—I find that very hard to believe. He has not detailed how that will take place. Media groups are an important part of our democratic process. I mentioned this building before and the Reps, the Senate, the public and big government. The other resident of this building is the fourth estate, who play an important role in keeping us honest as parliamentarians and governments. So, media groups do use FOI regularly. It has been put to me that they are generally in favour of a return to the AAT review. However, that $870 application fee might be okay for a mainstream media organisation but it is not for an individual—that is disappointing. The ordinary citizens who we answer to have a line of power from the front of the building through to the government, through to the cabinet, through to the Prime Minister—we should be looking after their interests and not just the interests of large-scale media organisations. If we focus on the mainstream media groups too much we will lose what it takes to be a healthy democracy.

The return to compulsory internal review prior to seeking an AAT review will have implications on agency resources and timeliness. We will see how the data is presented by the Attorney-General in the months and years ahead. I am sceptical. I live in hope, I guess, but I think that they have acted prematurely and that is why we are not supporting this piece of legislation. Under the Rudd and Gillard governments we had started to change the culture and this legislation now before the chamber is a change in the changing of that culture of openness and we will be all the poorer as a democracy for it—that is why we are opposing this legislation.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

This government has rarely seen a piece of information that it does not want to hide. Of course, if the government thinks distributing that information is in its interests, it is quite happy to leak it or shout it from the rooftops. But    if the government thinks information is potentially damaging to it, it goes to great lengths to conceal it. We have seen that with its approach to dealing with refugees who come here; we have seen a minister who is quite happy to selectively leak certain information, often in a misleading way. However, when it comes to finding out what is being done in our name under so-called Operation Sovereign Borders, the Minister for Immigration and Border Protection routinely comes in here and tells us that it is an on-water matter and he cannot comment—as if boats could somehow be somewhere else. He comes in here and says, 'I cannot tell you what is going on, even though it is being done in your name and with your money.'

This government went to an election saying that any project over $100 million has to have a cost-benefit analysis, and yet they put in $1.5 billion for stage 1 of EastWest Link without a published cost-benefit analysis and $1.5 billion for stage 2 before anyone even knew what stage 2 was. So billions of dollars are going into it, and just coincidentally it is helping the Victorian government during an election period by helping them get back to surplus; nonetheless, billions of dollars of taxpayers' money is going to a project for which the government will not release the cost-benefit analysis.

Then of course we have this Freedom of Information Amendment (New Arrangements) Bill—a bill that looks at transparency in the operations of government and says, 'Let us remove some of the offices that are charged with campaigning for greater openness and transparency within the operations of government.' Generally, we should always err on the side of openness when it comes to freedom of information, but we should especially do so with this government. We should be especially sceptical of a government that says, 'We are doing this in the name of removing red tape'—because one person's red tape is another person's protection. When it comes to freedom of information, it is the public that is being protected. The public is being protected from the making of bad decisions by ministers and by governments. That is why it is absolutely crucial that we continue to campaign for expansion of freedom of information laws in this country, not their restriction.

The government has a catch-all explanation for any kind of reform that it wants to do, which is that it is removing complexity and removing red tape. In this instance it has said it is doing that because of the complexity associated with a two-tiered system—that is, ministers make the decisions and someone oversees them and there is someone potentially to go to and then separate to that is a system of tribunals and courts when you can have a review. It is very clear what the review of this legislation and the operation of the commissioner has stated. The 2013 review by Dr Hawke concluded that this office:

… has been a very valuable and positive development in oversight and promotion of the FOI Act.

It went on to say that yes, it has been there for only a short period of time and there are some who might say that this is another layer in the system, but it is a layer of transparency and a layer of driving change within government about how government thinks about information and releasing it. That is why the review went on to say:

The current system of multi-tiered review has been in operation for two and a half years—

not a long time—

At this stage there is insufficient evidence to make a decision on whether this is the most effective or efficient model for reviewing FOI decisions, particularly in relation to the two levels of external merits review. The Review considers this issue warrants further examination and recommends that the two-tier external review model be re-examined as part of the comprehensive review recommended in Chapter 1.

We have not had that. We have not had the government come say, 'We have had a look at the whole system and there are some things that need to be tweaked.' We have just had the government say, 'Here is an extra layer of scrutiny, transparency and accountability on us, so what can we do to get rid of it?' In effect, what they are doing is demolishing a system that has not had a chance to prove itself but that the reviews we have had so far have said is taking positive steps towards openness and transparency.

What we did not hear in the minister's second reading speech was that the abolition of the office is going to remove the statutory monitor of compliance with the scheme. This is very significant. This is a seismic shift in how government decision makers think about the openness of their information. This is not something that ought to have been new to the Australian decision-making system. Back in 1995 the Australian Law Reform Commission recommended that we take action on this front. It took 15 years for the government to act. I commend the previous government for at least acting. Having taken that step that has been called for since 1995 and having had now a couple of years of operation of this, which is generally receiving positive comments, with the caveat that it should be given a bit more time to let it prove itself, the government is now taking us back to the situation before anyone took any steps at all. We are going to have a gap in our system and there will now not be an independent officer charged with driving that kind of accountability and transparency within the government. Similarly—and this was also not referred to—we are going to now not have an officer charged with that provision of strategic advice to the government on the broader questions of information management.

To that extent you can see that this is not about addressing real issues in the system. It is not about addressing technical questions that have arisen during the brief operation of a system that may have had some flaws and may have introduced some level of complexity. Some might say it needs some tweaking. If that is the case then have a proper review of it and come back with some suggestions to make the system work better. Do not abolish it completely. That is the direction that this government is going.

I will conclude my brief remarks here, but we will have more to say about this when the bill reaches the other place. If ever there were a government that you should not take on its word—'Just trust us and it will be all right; just let us have a bit more power, a bit more secrecy and a bit less responsibility to the public'—it is this one. We have been seeing that this week in other debates in this place and in the other place. We should be shining more light on the processes that governments make decisions by. For those reasons the Greens will not be supporting this bill.

Paul Fletcher (Bradfield, Liberal Party, Parliamentary Secretary to the Minister for Communications) Share this | Link to this | Hansard source

I thank all honourable members for their contribution to this debate. The Freedom of Information Amendment (New Arrangements) Bill 2014 will streamline arrangements for the exercise of privacy and freedom of information functions from 1 January 2015. I would like to address some of the matters that have been raised by members who have spoken in this debate. It was put by a number of members, including the member for Newcastle, the member for Moreton and the member for Melbourne, that the freedom of information regime is a very important tool to facilitate the open and transparent operations of government. The Abbott government certainly strongly agrees with that proposition. The Abbott government is strongly committed to transparent, accountable and open government.

I want to emphasise that this bill does not affect the legally enforceable right of every person under the Freedom of Information Act to request access to documents of an agency or official documents of a minister, nor does it make any changes to the objects of the Freedom of Information Act or the matters that agencies and ministers are required to consider in making decisions regarding freedom of information requests. The bill simply removes an unnecessary and anomalous layer of external merits review for freedom of information decisions.

It was put by the member for Isaacs and some other speakers that the Abbott government is seeking to abolish the information commissioner because of a desire to hide information from the public. I reiterate: that is a fundamental misconception of the rationale for this bill. The freedom of information arrangements, as I have just described—that is, the fundamental right of citizens, a legally enforceable right to request access to documents of an agency or official documents of a minister—are not going to change in any way.

There was some questions raised about the rationale for the amendments to the freedom of information arrangements and in particular the Office of the Australian Information Commissioner arrangements that are contained in this bill. Can I remind the House of what the Attorney-General, Senator Brandis, said on budget night, that this bill will 'streamline and simplify Australia's external merits review system'. The problem that this bill addresses is that the establishment by the previous government of the Office of the Australian Information Commissioner created an unnecessarily complex, multileveled system.

What we have seen in, notwithstanding the glowing assessments provided by those on the other side of the House, is that in practice what the current system has resulted in—the system that has been in place since the previous government introduced these arrangements—is a duplication of complaint handling, and there have been very significant processing delays. These issues have existed since the 2010 changes were made and are inherent in the design of the system. That is the very reason why this bill proposes to correct that fundamental design error that was made by the previous government.

The member for Isaacs and the member for Newcastle raised some concerns about the cost of going to the Administrative Appeals Tribunal to seek a review of freedom of information decisions. Let me just make some relevant points here. While it is true that the application fee to the Administrative Appeals Tribunal is $861, there is a reduced fee of $100 in the case of hardship. In certain specified cases there is no fee payable at all, and those include FOI reviews about Commonwealth workers compensation, family assistance, social security payments and veterans' entitlements. I also remind the House that consistent with other matters in the Administrative Appeals Tribunal, successful FOI applicants will receive a refund of $761 of the full $861 fee.

What the government is doing in this bill is to remove a layer of external merits review to bring the process into line with review arrangements for other government decisions. I reiterate: there will continue to be a merits review, but it will be a review by the AAT—a single merits review as opposed to the anomalous arrangement which has been in place since 2010 of having two layers of review.

The last point I would like to address is one raised by the member for Isaacs, who questioned why there was no reference to the Hawke review of freedom of information arrangements in the second reading speech. I want to emphasise that the government is not ignoring the review conducted by Dr Allan Hawke, who, as the member for Isaacs rightly said, is an extremely eminent former government official. The government is carefully considering the 40 recommendations in Dr Hawke's report and will determine its response in due course. It is simply not appropriate at this time to express any interim views in relation to that matter. So I do want to foreshadow that I will be moving a minor amendment to item 3 of schedule 2 to the bill to clarify the arrangements between the Australian privacy commissioner and the Australian Human Rights Commission.

I also want to acknowledge the valuable contributions of the Australian Information Commissioner, Professor John McMillan AO, the Freedom of Information Commissioner, Dr James Popple, and all of the staff of the Office of the Australian Information Commissioner. These new arrangements are in no way a reflection on their performance; they are a reflection on the system and the inherent design of the system in which they presently operate—an inherent design which needs correction. That is the purpose of this bill.

I conclude by reiterating the point that these arrangements will reduce the size of government, streamline the delivery of government services and reduce duplication. It will mean business as usual for privacy and it will largely restore the system for the management of freedom of information that was in place for many years before the establishment of the Office of the Australian Information Commissioner.

Question agreed to.

Bill read a second time.