Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

My adjournment speech tonight revisits the supposed statutory right to government held information that exists under the Freedom of Information Act. I say ‘supposed’ because of some of the review findings that indicate that this act is in need of serious reform and overhaul. What prompts me to raise this troublesome issue again is the recent Commonwealth Ombudsman’s report titled Scrutinising government: administration of the Freedom of Information Act 1982. I congratulate the Ombudsman on his report.

Released this year on 14 March, the Ombudsman’s report discloses what is already known. It discloses how access to official information is often restricted by this act’s numerous exemptions and by the negative way in which the act is administered in particular agencies or circumstances. It reveals that, although the act can work well in assisting people to access personal information, it does not do so well when it comes to accessing policy related information.

In short, it reveals a clear consensus of opinion with previous reviews, including the Ombudsman’s 1999 report on the FOI Act, called Needs to know. This report revealed widespread problems in the public sector, among which was ‘a growing culture of indifference or resentment towards the disclosure of information’. Such remarks replicated the views exposed in the 1995 joint report issued by the Australian Law Reform Commission and the Administrative Review Council. That report, titled Open government: a review of the federal Freedom of Information Act 1982, found that many agencies continued to foster a culture of secrecy through an adversarial and excessively legalistic attitude.

To give effect to the changes recommended to the FOI Act by this joint report by the ALRC and the ARC, in 2000 I introduced a private senator’s bill, the Freedom of Information (Open Government) Bill. Of note among the legislative amendments of this bill was the proposed introduction of an FOI commissioner. This bill was then referred to the Senate Legal and Constitutional Legislation Committee, which reported back in April 2001. The committee endorsed many of the bill’s amendments and recommended that, subject to changes, the bill should proceed. The changes were accordingly made, and I introduced an updated version into parliament in June 2003. Its purpose was to extend to the public access to information held by the Commonwealth and to establish an independent position of FOI commissioner to be held by the Ombudsman. However, debate on my bill was adjourned after its second reading. The bill was subsequently restored to the Notice Paper in November 2004, after the 2004 election, and now remains on the current bills list.

I noted in my 2003 second reading speech that two things were clear: first, the FOI Act was in need of serious reform and, second, the government had no intention of delivering that reform. Well, nothing has changed, and the FOI Act continues to be subject to ongoing attacks. Nowhere is this better expressed than in the editorial of the Canberra Times on 4 August 2005. It stated simply:

The FOI Act might as well be scrapped ... and the sooner the better.

Surely there is something seriously wrong when a reputable newspaper, with a reputation for accountability, calls for an end to freedom of information legislation. It obviously does so because the act is not producing the results that it was expected to do. The newspaper wrote this editorial following the Federal Court’s decision to uphold Treasurer Peter Costello’s ability to block FOI requests according to his definition of the public interest. The scenario is this: since 2002, the Australian newspaper’s FOI editor, Mr Michael McKinnon, has sought access to Treasury documents on bracket creep in the tax system and the first home owners program, including its use by the wealthy.

The Federal Court’s ruling is perceived as a major setback for openness and accountability. It proved just how valid the cliche ‘freedom from information’ is and called into question the credibility of the entire FOI system. The case is now in the High Court. It continues because if it is left unchallenged the government will have the new power to restrict access to information based on its own virtually unchangeable and unchallengeable definition of the public interest.

While reading a review article in the Financial Review of 16 June, I was struck by some timeless wisdom that Treasurer Costello and the Howard government would do well to take note of. The article was written by Michael Dirda. It was a review of a new book on the 17th century philosopher Baruch—later Benedict—de Spinoza. Spinoza wrote of how democratic principles are fundamental to maintain the rights of all citizens—ideas that were later taken up by political philosophers such as John Locke, the revolutionaries who motivated many of those who wrote the United States constitution, and early American legislators and political activists. In particular, Spinoza argued for free speech and complete openness in government. What struck me when I read the article was a quote Dirda uses from Spinoza’s writings:

Better that right counsels be known to enemies than that the evil secrets of tyrants should be concealed from the citizens. They who can treat secretly of the affairs of a nation have it absolutely under their authority; and as they plot against the enemy in time of war, so do they against the citizens in time of peace.

Treasurer Costello should remember these words as he uses taxpayers’ money to continue one of the longest-running anti-freedom-of-information cases of the last 20 years.

The Commonwealth Ombudsman’s 2006 report that I referred to earlier, Scrutinising government, endorses the view that FOI reform at the Australian government level is well overdue. In its concluding remarks, it particularly states that ‘many of the shortcomings in the current operation and effectiveness of the act could be addressed with the establishment of a constant, independent monitor’ of, and advocate for, FOI. It then goes on to recommend:

... that the government consider establishing an FOI Commissioner, possibly as a specialised and separately funded unit in the office of the Commonwealth Ombudsman.

As I stated earlier, this recommendation is not new. Just because it is not new, that does not mean it is not valid. It is a recommendation that features prominently in the associated reports that precede this most recent one. It is also one that has been adopted into my open government bill, which remains on the current bills list and was unanimously accepted by all parties in the Senate committee that reviewed it.

The government needs to acknowledge and accept that, since the act’s noble beginnings, almost everyone who has looked at it in any detail has been unhappy with FOI legislation for one reason or another. The FOI regime is not the success it should be. It costs too much, it takes too long and it conceals too much. Although there have been some notable successes in prying information from government agencies, there are too many documents and other pieces of information exempt from its reach. It is far too subject to the whims of bureaucrats and politicians and to those with a secretive, as opposed to an open, nature.

Without the persistent and expensive efforts of the Australian newspaper, the government, with its secretive nature, would remain unchallenged. The culture of secrecy that pervades the operation of FOI does nothing to protect and facilitate the steady growth of our representative and participatory democracy. It was the Fraser Liberal government that introduced the legislation in 1982; it would be really appropriate now if the Howard Liberal government were able to find it in itself to fix that act’s deficiencies in design and administration and, in particular, to change the secretive and obstructive spirit in which it is now too often administered. Despite its still good characteristics in a number of agencies and circumstances, without significant new provisions the Commonwealth FOI regime overall could end up in danger of terminal decline as a result of an assault on its principles by a nasty cabal of secretive bureaucrats and secretive cabinet ministers. The recommendations of the Commonwealth Ombudsman’s report Scrutinising government: administration of the Freedom of Information Act 1982 would be a good place to start that necessary overhaul of these laws.