David Johnston (WA, Liberal Party) Share this | Hansard source

This is a very interesting piece of private member's legislation requiring agencies and ministers to publish the exact wording of freedom of information requests or the answers thereto. The amendments, as I understand them, in the brief time that I have had to review them, will also require agencies and ministers to publish a statement of reasons concerning the decision to allow or refuse the release of requested documents. Of course, whenever someone is asked to present reasons, clearly those reasons will be the subject of judicial review at some further point in time, or pursuant to the review provisions contained in the Freedom of Information Act. Asking ministers to provide reasons that will be the subject of review is a very heavy burden and one which should not be undertaken lightly in terms of increasing and exposing the executive to legal process.

The bill has the stated aims of: ensuring transparency and accountability are included within the framework of government decisions concerning freedom of information requests; allowing the public to view requests that have been made and the reasons documents were or were not released. The current situation, as the law provides for today, allows for just that; allowing applicants seeking similar documents to build upon previous requests; and reducing duplication of requests. All of these appear, superficially, to be quite laudable objectives. One has to ask the question, given that the opposition were in power for six years in Australia from 2007-2013: why these amendments and changes were not brought forward then. I think I have a bit of an inkling as to why that was: transparency was not something that was high on their agenda at the time. Indeed, one just momentarily needs to reflect on the modelling for the carbon tax and how that was unavailable to any members of parliament or to the public and was continually denied in supporting the financial workings of that carbon tax. In six years, there was no change, no transparency, under Labor, and now we have a private senator's bill that seeks to put an enormous administrative burden upon the government of the day—namely, the Turnbull government.

Section 11C of the FOI Act currently requires agencies and ministerial officers to maintain an online disclosure log. The disclosure log must either publish information made available in response to an FOI request or provide details of how the public may obtain that information. Providing details to the public as to how to go about obtaining the information is a stock standard, usual and understood methodology in the accessing of government documents. Why would you want to muck around with that? That is a bit of a mystery that the good senator, Senator Ludwig, needs to explain to us.

Senator Ludwig's bill proposes to amend these requirements by removing the option of providing details on how the public may obtain the information. That seems to me to be a very retrograde, backward step. The bill is entitled 'freedom of information' and yet we are not going to tell the public how to access that information. Secondly, it requires the publication of the exact wording of the FOI request and, thirdly, it requires publication of a statement of reasons concerning the decision to allow or refuse the release of the requested documents. I have dealt with the matter of providing those reasons.

The current disclosure log requirements, together with the Information Publication Scheme, or IPS as it is called, were part of the previous Labor government's package of FOI reforms in 2010. These reforms were intended to reduce the number of FOI requests over time, with the FOI Act providing access to information through agency-driven publication rather than only in response to requests for documents. However, the Hawke FOI review found that the implementation of the Information Publication Scheme had, strangely, the completely opposite effect—that is, instead of making things easier, more accessible and more transparent, the IPS and disclosure log requirements in many cases increased the FOI processing costs, with resources being diverted from other key areas to assist with FOI processing.

Of course, Senator Ludwig has a very illustrious record of asking page after page of quite superfluous questions at both Senate estimates and in FOI requests. As well as increasing the cost of FOI processing, these initiatives have not resulted in any reduction in the number of FOI requests received by agencies and ministers. So the Labor Party's reform measures of 2010 actually achieved, in my understanding and in my argument, the opposite of what was intended. Things became more process bound and more costly and it became more difficult for the government of the day to respond to and answer the FOI requests, which I would have thought was completely contrary to what was intended. Similarly, this private senator's bill is going to exacerbate the situation, because it simply has not been thought through properly. If it has been thought through, I think it has an ulterior motive to it. In fact, since FOI reforms commenced in 2010, the number of FOI requests has increased from 23,605 in 2010-11 to 28,643 in 2013-14.

I note that the bill seeks to change the definition of 'working day'. I find that very interesting and a little incongruous. 'Working day' has a common or garden-variety meaning in the minds of most normal people. A working day is a day where people are actually working. Monday to Friday is the Interpretation Act's assessment of what are working days, in my understanding. The term is only used once in the legislation, in section 11C. It is very difficult to see how an artificial, contrived definition of the words 'working day' will eliminate confusion concerning time frames for publishing information. As is usual with legislation that has not been thought through, this will be even more confusing. Accordingly, it is a significant flaw in this legislation. It provides for unintended consequences, which is rather typical of the sort of half-baked legislative understanding that comes to this place from the Labor Party from time to time—only rivalled, usually, by that of the Greens.

Items 2 and 3 of Senator Ludwig's bill remove the option for an agency or minister to publish details of how information may be obtained rather than the information itself. Currently section 11C(3) provides that the information disclosed in the requests must be published on the agency or ministerial website, by, firstly, making information available for downloading from the website—that is section 11C(3)(a)—and, secondly, publishing on the website a link to another website from which the information can be downloaded, which is in section 11C(3)(b), or, thirdly, publishing on the website other details of how the information may be obtained. That is found in section 11C(3)(c). Items 2 and 3 of the good senator's bill amend section 11C(3) to remove the option of simply publishing on a website details of how the information may be obtained, rather than the information itself.

I must say I find this legislation and the intent behind it very, very vexing and troubling. Why would you want to close off an avenue for members of the public to find and access further information? This is very, very peculiar. I am not sure what the good senator's intentions are here. Senator Ludwig states that this amendment is designed to provide the public with easy access to documents released under the FOI Act. The current requirement for information to be released is that it is published for the public, generally on a website. Some agencies publish the documents released on their websites together with the FOI requests. What this will do is remove the flexibility, where the information cannot be readily published on a website, of providing details of how the information can be accessed. And so references to the Australian Bureau of statistics and other annual reports where there is a wealth of other information—all of those sorts of things—apparently cause some angst to the senator in the presentation and motivate him to present these amendments. I must say I find all of that very, very confusing.

It may not be straightforward for an agency or minister to publish some documents on a disclosure law in an accessible format or to convert documents to such formats within 10 working days. Those difficulties and disabilities are not addressed in the legislation; as one would expect, the details have not been considered—to use a colloquialism: the whole thing is a bit half-baked.

This may be an issue, for example, if information ha s been redacted from a document or where the voluminous nature of the document is only available as a hard copy or in a PDF format. Removing flexibility will impose an administrative burden on agencies and ministerial offices in preparing documents for publication within 10 working days of the information being released. This could create challenges for agencies and ministers in managing an increased FOI workload—and I come back to the numbers that I gave previously: we started off with the Labor Party's amendments with 23,605 FOI requests in 2010, and the amendments have generated an increase to 28,643 in 2013-14. As I was saying, these amendments are going to generate challenges for agencies and ministers in maintaining an increased FOI workload and impact on the processing of FOI applications. That all converts to one thing: cost.

We all know on this side of the chamber that the very last thing the Labor Party—and its senators—ever think of in legislation is the cost. They have absolutely no regard for the respect required for taxpayers' money in these crazy schemes that they seem to want to implement.

The new section 11D will also require agencies and ministers to publish a statement of reasons concerning the decision to allow or refuse the release of requested documents. Section 26 of the act currently provides for statements of reasons to be given where a decision is made to refuse access. Whether you grant or refuse, it appears that you will have to provide reasons as to why you are granting.

Section 22 provides reasons to be given where an edited copy of a document is provided. The difference with the new provision is that a statement of reasons is also required when access is granted in full —I would have thought that is completely ridiculous and quite stupid, but what am supposed to expect here? In addition, all statements of reasons, as well as the requests themselves, must now be published within 10 working days. What that means, given the change in definition of 10 working days, I am not sure. I think we are all left to wonder why we are taking the definition of 10 working days and turning it into something not readily understood. Ten working days—if it were Monday to Friday days—or two weeks are still not a lot of time.

Once again, this new provision will impose a substantive administrative burden on agencies and ministerial officers, which could result in significant processing delays in other aspects of FOI processing. Of course that is something which the good senator has completely ignored.

Senator Ludwig states that this measure will facilitate more practical use of freedom of information requests, reduce duplication of requests and open the door for further reform by parties other than the initial applicant. I would like to see that because, as I have said, having tried once at reform, we now know that those reforms and their unintended consequences made the process more difficult, more expensive, challenged schedules and generally achieved objectives in complete opposition to what the original intent of those reforms was. Once again, the Labor Party lived up to everybody's expectation that they really have no idea what they are doing when it comes to reform.

It is more likely that publishing reasons for decisions will result in overburdened agencies that are struggling to manage increasingly heavy FOI workloads , taking shortcuts and adopting published reasons rather than making a decision based on the circumstance of each particular request. I think that is a very logical and likely outcome which I would emphasise to anybody listening to me speaking now.

In conclusion, the government is committed to being a transparent, accountable and open government. The FOI Act is an important accountability measure, which facilitates the open and tran sparent operation of government, and the dealing with individual proprietary rights and privacy matters of people from time to time, as it must, in carrying out all of the heavy burden of the day-to-day activities of good government.

Rather than ensuring accountability and transparency, the measures in the bill will compromise the effectiveness of the decision-making processes under the FOI Act—and compromise in a very substantial way. It is very unlikely that the measures in the bill will reduce duplication of requests, as requests cannot be refused where information is publicly available free of charge or where information that would substantially address the subject matter of the request is regularly made available—for example, in annual reports or otherwise; and I have dealt with that.

Nor can a request be refused if the request is substantially the same as another FOI request that has already been made. So every second day of every month of every year you can ask for the same information because it inconveniences the government. That, I think, is the nub of what this might be all about. An applicant will not need to provide a reason for making an FOI request. So what this does is open the floodgates to some form of process here that is designed to stand on the hose, to be expensive and to cause the government of the day a lot of administrative woe and problems. That is all very well but, at the end of the day, I think ordinary citizens of this country need the government of the day to work in a cost-effective and efficient manner and not be completely focused on the process of FOI requests.

This bill will not reduce duplication of requests and it will not reduce the number of FOI requests. As has been clearly set out, their reforms failed to deliver. Notwithstanding that they expressed an intent to reduce the number of requests, those requests have increased. Instead, the bill will impose further unnecessary steps and procedures into existing processes for access to government information under the FOI Act. This will increase the costs, as I have said, and will increase the complexity of FOI processing. Remember: FOI is for ordinary citizens. They are not lawyers; they simply want information. So this bill is seeking to increase the costs associated with processing FOI requests and increase complexity and will result in significant processing delays. I would have thought that that was completely in opposition to what we in this place should want to do. It is a mystery to me why a senator of Senator Ludwig's standing would want to come forward with such a nonsensical, stupid bill.

Debate adjourned.