Rex 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.