Paul Scarr (Queensland, Liberal Party) Share 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.