David Shoebridge (NSW, Australian Greens) Share this | Hansard source

I rise to echo the comments of Senator Paul Scarr, who chaired the inquiry into the freedom of information system at a Commonwealth level. It was remarkable, the evidence we heard in that inquiry. You could arrive at only this conclusion: that the FOI system is broken. It's not achieving transparency, it's not achieving timeliness, and many people have given up on it as a tool for finding critical information about how the Commonwealth government works. It is literally broken.

The statistics about delay, and the delay that centres in the Office of the Australian Information Commissioner, the OAIC, are particularly telling. There are hundreds and hundreds of matters that are more than three years old in that office. Reviews—often for critical government information—have taken at least three years to be delivered. Some are still clogged in that system five years after they were lodged with the Office of the Australian Information Commissioner. As Senator Scarr made clear, we only know that critical information about the freedom of information system because we squeezed it out of the government and the OAIC in budget estimates and in this inquiry. Astoundingly, these key statistics are not even reported on by the Office of the Australian Information Commissioner. You could not make it up.

The evidence that we got from former FOI commissioner Hardiman was also particularly telling. I want to be clear that Mr Hardiman struck me—and I think the majority of the committee, if not all of the committee—as a credible, decent public servant who sought to do what he could in a system that was starving him of funding and deeply disrespectful of his expertise. He struggled on as best he could, but he was doing it in an office that seemed to be consciously structured to prevent the FOI division in the OAIC from having the funds and resources it needed to do its work.

You don't have to just believe me or the committee report. In the now disclosed APS survey, when the FOI division of the OAIC were asked about the performance of the group and were asked whether their work group has the resources needed to perform, 63 per cent of people in the FOI group said no, 13 per cent were neutral and only 25 per cent said yes. That 63 per cent is double the rate that we find in the overall APS survey of other agencies.

Mr Hardiman's complaint was that the current OAIC commissioner deliberately withheld funding from FOI and did so in circumstances where she thought she was complying with a political direction from a former Attorney-General. It was extraordinary and it was contrary to the legal position that allows agency heads to move funds around within their agency to meet the most pressing needs.

Of course, the committee was not the place to finally resolve all of those elements of workplace dysfunction and organisational dysfunction—we couldn't run every rabbit down every rabbit hole—but what we heard was so disturbing and so troubling that the first recommendation was to have an urgent independent review of those workplace issues raised by Mr Hardiman in the OAIC. That is urgent work. That is why I was astounded to see that just a few weeks before we released this report the Attorney-General thought it prudent to appoint two fresh statutory officeholders to the OAIC without first addressing the extensive management and organisation failures we observed. I believe that that's an action that puts at peril both of those officeholders who go into an office where there is such compelling evidence of dysfunction and managerial failures.

Not to address that before appointing two new statutory officeholders—what was the Attorney-General thinking? It's not as though he wasn't aware of the evidence. There were Labor members on the committee. Much of this evidence was in public. How could the Attorney in good conscience have appointed two new statutory officeholders knowing that this dysfunction was in place, without first addressing it? It is genuinely unbelievable.

I wish both of those appointees every positive wish that I can. They go with the Greens' good wishes, but they go with our very real concern for what they will face as they seek to undertake their essential statutory functions in that office. It was an extraordinarily arrogant step of the Attorney to simply ignore the evidence we saw in that committee and to pretend that you could just appoint two people and it would work. Extraordinary.

This committee, I believe, operated in a nonpartisan fashion. We had very difficult evidence to deal with and we could have delivered a report that was excoriating of individuals. We endeavoured not to do that and to recommend an independent review. We also recommended some structural changes because—as a former Commonwealth Ombudsman found and as many of the witnesses said—putting the privacy functions together with the FOI functions creates an inherent tension because much of privacy is about keeping information secret and not providing it to third parties, whereas the core function of FOI is to put as much information as possible into the public domain. They obviously have significant tensions, and those tensions have only increased as the sheer amount of work required in the privacy space has grown and grown—and for good reason. No-one begrudges the work in the privacy space, but the fact is that work in the privacy space has been happening for the last near-decade at the expense of literally stripping every marginal resource out of FOI. That has led to the FOI system sort of grinding to a halt.

I would have hoped that we would have had better than the dissenting report from the government on this, which seeks to suggest that this recommendation was, somehow, a partisan attack on the OAIC. Far from it. It was a reluctant conclusion that that experiment has not worked. It was a reluctant conclusion we came to because that's where the evidence compelled us. There are good, principled reasons to disassociate those, not to throw the FOI system into its own tiny little agency but to embed it in an agency that has a similar kind of public purpose—which is the Ombudsman's office. In South Australia that's where it's found anyhow, and many of the witnesses we had said the South Australian model is actually pretty bloody good.

What were the other critical recommendations we had? They were to simplify the process and remove an often wasteful internal review and instead put those agency resources into getting the primary and first decision right; to spend the resources where they're best spent, which is getting the initial decision right; and to remove internal reviews and then have the first independent merits review done without the requirement to deliver lengthy, near-judicial reasons. Make that quick and make that a decision-making process rather than a judgement-making process, with an empowered and well-resourced FOI commissioner, and then give ready access to the AAT for a full merits review. That's a model that will work. That's a model that will simplify and speed up the process and make it about freedom of information, not freedom from information, which is what the current system is. None of it will work—not the existing system and not the reformed system—without a significant increase in resources to deal with the backlog and make it fit for purpose.