Amanda 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.