Claire Moore (Queensland, Australian Labor Party, Shadow Minister for Women) Share this | Link to this | Hansard source

I had to look very carefully to see the last time I had the honour of taking part in this discussion about freedom of information. When I checked the Hansard, I saw that I had made my first incredibly important three-minute contribution in this discussion on Thursday, 18 June. I know that people would be really interested to know where we are moving on this particular piece of legislation. It is quite simple. Senator Ludwig has, through his Freedom of Information Amendment (Requests and Reasons) Bill 2015, put forward a proposition to the Senate to make freedom of information more open and transparent and to allow the public to know exactly what is going on with applications across the range of government agencies.

Many people in the chamber have had the opportunity to make a contribution on this bill, as the bill has arrived in private members' business on a few occasions. I think it is important to understand that the original designers of the bill had a very straightforward sense of what freedom of information truly is. When they began looking at these issues, particularly around the early 2000s, at both the federal and state levels, it was felt that we needed to have effective freedom of information mechanisms. In my own state of Queensland it was actually a bit earlier than that, in the late 1990s, that the Queensland state government acted in response to concerns from the community—the legal community and people who had been involved in the system. The concerns were that, whilst there had been attempts made to put systems in place to help people understand decisions, processes had not been stringent enough to effectively allow not only the applicant making the freedom of information request but also other people who might well have been interested in that issue to know what requests had been made and what the government's responses had been. That is indeed what Senator Ludwig is putting forward for the Senate to consider in this private member's legislation.

We have the system. All departmental websites publicise information about their commitment to issues around freedom of information. You can go through the dot points on these websites that say how it operates, what the process is for applicants and what the time frames are for freedom of information requests and responses. They also tell you that in some cases the department will be able to charge for providing the information, based on the amount of time it would take. The websites also tell you that you may not always be able to get the information you are seeking, because there are some things that departments decide cannot be released.

But there must be justifications for those decisions. That is one of the key elements of Senator Ludwig's private member's bill: that those explanations of why a request has not been successful should be articulated in a way that is understandable not just to the applicant but to other people interested in the issue—because the motivation for freedom of information requests varies across the board. Some people have very personal circumstances they are trying to obtain information about, but others are looking at policy areas that are of interest or are disputed—decisions of government or decisions of departments that they may want to question. When you are seeking information that you have not been able to get in any way other than a freedom of information request, there should be public notification about why the decision was made—why decisions were made to not allow access to information and indeed why decisions were made to allow access.

With this bill we are moving forward to strengthen the existing legislation, the act that is in place, the one that the Labor government committed to in our 2007 campaign—the commitment that we would strengthen freedom of information and make sure it operated as it was intended to. Indeed the title gives you a hint about what the whole idea was. It was to have information about government actions available freely to the public. Freedom of information, by its very nature and its very title, sets up an expectation in the community that you will be able to have access to information. That is what Senator Ludwig's bill addresses. The bill will strengthen the existing legislation to deliver on the original core principles which are enshrined within the act—the core principles that say there should be transparency, there should be understanding of decisions that have been made and there should be policy processes that are observed.

I mentioned on 18 June that there are some areas, particularly around issues of security and anything that has the word 'ASIO' attached to it, where there is no way you are able to get the full detail of some decisions. There is probably an understanding that this is true because it is indeed linked to issues that are of national security sensitivity. But that should be clearly identified. It should not just be dismissed with a one-line explanation. If a request for information is put forward and a decision is made that it cannot be released because it has national security implications, that should be fully explained. Without going into any specific examples, that is what we are asking for. We understand that there are limits. We are not saying that every document should be released—no-one can say that. But what we are saying is that, when decisions are made, we should understand them.

Senator Ludwig's bill goes into detail. The whole idea is that we are allowing the public to see specific and detailed reasons as to why freedom of information requests have been denied. I do not think that is an unreasonable expectation. If we are committed to transparency of government, if people are to understand what decisions of government and parliament will mean for them and their community, when people exercise their right to access the system and put in an FOI application they should expect to get a reasonably detailed, focused and personal response. That was the expectation of the original legislation.

There were concerns raised by some on the government side about possible workload issues and difficulties in the operation of the system with the details in this legislation around the timeliness and amount of information that can be released. However, on balance, the expectation of having freedom of information legislation operational in government departments should mean that there will be decisions to make those resources effectively funded. Government departments already have a section that is linked to freedom of information—and they are often linked to other communication activities such as ministerial correspondence. But resource priority should be given to the responsibility of freedom of information in government departments.

In a time of budget restrictions in government departments—and I have no particular evidence of the current administrative arrangements in government departments—it may well be that administrative decisions around how many people are working in this area may have some impact on the timeliness of decisions and perhaps the fullness of information provided. If that is the case, Senator Ludwig's proposed amendments to the FOI Act would ensure that there will now be a legislative basis to make sure funding is provided. A clear definition of timeliness and the types of explanations that must be available to the public when they make an FOI request would be set out in the legislation so that government departments would have the stimulant to say, 'This is what we have to do and, therefore, we have to resource it effectively.'

That is a very important element of the legislation. If Senator Ludwig's private member's bill is accepted, people working in this very important area will no longer be free to not meet the deadlines—which is 10 days in this legislation—and the requirement to provide transparent and detailed responses to requests. That would be set out in the resourcing decisions that the department makes. They would know the volume of FOI requests they get—and that varies from department to department. Some departments receive a much larger number of FOI requests than others. Nonetheless, it is clearly the responsibility of government departments to provide this service.

I had a quick look at a range of government department websites. Their websites state that they provide an FOI service—as they must. Tightening up the time frames and the expectations around the type of response that must be made would be part of the government departments' decision making about their distribution of resources. We get complaints from the community about time delays in getting a response and, when you get a response, the limited nature of it. Therefore, the administrative processes would be strengthened so that there would not be a time delay or the very curt responses I have seen to some FOI requests.

The bill before us does not make a large number of changes. What it does is remind us of the original intent of freedom of information for government and the public sector. It puts in place the clear responsibility to make information available, to give an effective response to requests and also to engage with the person or group who has put in the request. That was the expectation when freedom of information was originally introduced in the Commonwealth and state parliaments. Over that time, people have had a chance to evolve in terms of the way it operates. There have been numerous discussions and conferences among professionals in this area to look at best practice and to examine how best the system should operate. Out of those discussions, particularly by professionals who work in the field and by the community, who have been requesting freedom of information responses over many years, has come a view that there needs to be tightening of the system; there needs to be a reinforcement of what freedom of information really means. There is also a clear expectation of the government that, when citizens—and this is a term used a lot in public sector discussions currently; talk of citizens accessing the services seems to have come into vogue over the last couple of years—put forward a request under freedom of information, they should be allowed to see specific and detailed reasons for the response to their request, and that there should be timeliness around when this information is provided.

Also—and this is one of the things I like about this bill—it would mean that, published on the websites, people would be able to see the nature of the requests and the responses. Another element has been that, when individuals access the system, sometimes that stimulates more action from other people in the community. So, on a particular issue, there could be a series of requests for information, and that could be built upon by seeing what had already happened by the website discussions around a particular issue. That seems to be a step forward in the way freedom of information should operate. It also seems that this shows genuine respect not just for the community but for the people who worked so hard to ensure that freedom of information legislation was introduced and implemented in our Commonwealth departments.

Zed Seselja (ACT, Liberal Party) Share this | Link to this | Hansard source

I am very pleased to contribute to the debate today on the Freedom of Information Amendment (Requests and Reasons) Bill 2015. I, along with the coalition government, support the Freedom of Information Act and support transparency in government. It is one of our country's greatest strengths that we ensure the decisions of government are put under scrutiny and, where possible, are out in the open. This government has a strong record over the last two years of making the small improvements to regulations and legislation necessary to make the operations of government simpler and more transparent. But this bill does not do anything to help with transparency in government. It does not relieve the administrative burden of FOI requests. It will, in fact, increase the costs and complexity of FOI processing and result in significant processing delays. Of course, it certainly is an admirable intention to improve the FOI system wherever possible. This government would be quite happy to support such improvements if they are well thought through—but this bill is not well thought through. This is typical of the back-of-the-coaster policy style of the modern Australian Labor Party. One of the reasons we will not be supporting the bill is that it has a range of unintended consequences, which often arise when you have not properly done the policy work.

To explain why the bill will not work, we should take some time to consider what the bill intends to achieve. This bill seeks to amend the Freedom of Information Act 1982 to require government agencies and ministers to publish the exact wording of freedom of information requests. The amendments will also require agencies and ministers to publish a statement of reasons concerning the decision to allow or refuse the release of requested documents. The bill has the stated aims of: ensuring transparency and accountability are included within the framework of government decisions concerning freedom of information requests; allowing the public to view requests that have been made and the reasons why documents were or were not released; allowing applicants seeking similar documents to build upon previous requests; and reducing duplication of requests. Furthermore, the explanatory memorandum to Senator Ludwig's bill states:

Publishing the reasons for decisions will allow for scrutiny of departmental decisions and open the door to further reform to allow review of requests by parties other than the initial applicant.

Section 11C of the FOI Act currently requires agencies and ministerial offices to maintain an online disclosure log. The disclosure log must either publish information made available in response to an FOI request or provide details of how the public may obtain that information. Senator Ludwig's bill proposes to amend these requirements by: removing the option of providing the details of how the public may obtain information; requiring the publication of the exacting wording of the FOI request; and requiring publication of a statement of reasons concerning the decision to allow or refuse the release of the requested documents.

The current disclosure log requirements, together with the information publication scheme, or IPS, were part of the previous Labor government's package of FOI reforms in 2010. These reforms were intended to reduce the number of FOI requests over time, with the FOI Act providing access to information through agency driven publication, rather than only in response to requests for documents. Again, these are all pretty reasonable sounding goals and, on a cursory reading of the proposed legislation and seeing those intentions, this could be a bill worth looking at. However, as reported in the Hawke FOI review, implementation of the IPS and disclosure log requirements have, in many cases, increased FOI processing costs, with resources being diverted from other key areas to assist with FOI processing. As well as increasing the costs of FOI processing, these initiatives have not resulted in any reduction in the number of FOI requests received by agencies and ministers. In fact, since the FOI reforms commenced in 2010, the number of FOI requests have increased from 23,605 in 2010-11 to 28,643 in 2013-14. So a closer reading shows that what this bill proposes does not in fact work. So we on this side of the chamber do not support this bill—because we do not support legislation that says it will do one thing but, in fact, does the opposite.

Let us look, then, in some further detail at how this bill will work as opposed to what it intends. Item 1 of Senator Ludwig's bill inserts a new definition of 'working day' in the interpretation section of the act, which applies in relation to a requirement in a provision of the FOI Act to publish information to mean a day that is not a Saturday, a Sunday or a public holiday in the place where the function of publishing the information under the provision is to be performed. As the term 'working day' is only used in section 11C, it is difficult to see how this will 'eliminate confusion concerning time frames for publishing information' as is the suggested intent of the amendment. Items 2 and 3 of Senator Ludwig's bill remove the option for an agency or minister to publish details of how information may be obtained rather than the information itself. Currently subsection 11C(3) provides that the information disclosed in the request must be published on the agency or ministerial website by: making the information available for downloading from the website; publishing on the website a link to another website from which the information can be downloaded; or publishing on the website other details of how the information may be obtained. Items 2 and 3 of Ludwig's bill amend subsection 11C(3) to remove the option of simply publishing on a website details of how the information may be obtained rather than the information itself.

Senator Ludwig states that this amendment is designed to provide the public with easy access to documents released under the Freedom of Information Act 1982. The current requirement is for information that is released to be published to the public, generally on a website. Some agencies publish the documents released on their websites and the FOI request. What this will do is remove the flexibility, where the information cannot be readily published on a website, of providing details of how the information can be accessed. The current flexibility ensures that there is no impediment for those who are interested in accessing the particular information, while at the same time not imposing an onerous administrative burden on the agency.

It may not be straightforward for an agency or minister to publish some documents in accessible formats on a disclosure log or to convert documents to such formats within 10 working days. This may be an issue, for example, if information has been redacted from a document or where a voluminous document is only available as a hard copy or in a PDF format. Removing flexibility will impose an administrative burden on agencies and ministerial offices in preparing documents for publications within 10 working days of information being released. This could create challenges for agencies and ministers in managing increased FOI workload and impact on the processing of FOI applications

Item 5 of Senator Ludwig's bill amends the FOI Act to insert a new provision, section 11D. This proposed new section requires agencies or ministers: where access is given to the whole document, to publish the FOI request itself and the reasons for decision within 10 working days after the person is given access; where access is given to an edited document, to publish the FOI request itself and the notice that an edited copy has been prepared and grounds for deletion within 10 working days after the notice is given; if a request for reasons for decision is made for the refusal to the whole document, publish the reasons within 10 working days after the reasons are given; and where access is not given to a document at all, to publish the FOI request itself within 10 working days after the decisions and the reasons for decision within 10 working days after the reasons are provided. Essentially, this provision will require agencies and ministers to publish the exact wording of FOI requests.

New section 11D will also require agencies and ministers to publish a statement of reasons concerning the decision to allow or refuse the release of requested documents. Section 26 of the FOI Act currently provides for statements of reasons to be given where a decision is made to refuse access. Section 22 provides reasons to be given where an edited copy of a document is provided. The difference with the new provision is that a statement of reasons is also required when access is granted in full and that all statements of reasons, as well as the requests themselves, must now be published within 10 working days. Once again, this new provision will impose a substantial administrative burden on agencies and ministerial offices which could result in significant processing delays in other aspects of FOI processing. Senator Ludwig states that this measure will facilitate more practical use of freedom of information requests, will reduce duplication of requests and open the door for further reform by parties other than the initial applicant. But as I have already said, it is more likely that publishing reasons for decisions will result in overburdened agencies struggling to manage increasingly heavy FOI workloads, taking short cuts and adopting published reasons rather than making a decision based on the circumstances of the particular FOI request.

It is for all of these reasons outlined by me over the past few minutes that the coalition will not be supporting Senator Ludwig's bill.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I do support this bill for a number of reasons. I note that Senator Seselja has given an articulate exposition of the reasons why the government does not support this bill, and I respect that. It is a good thing that Senator Ludwig has introduced this bill because, at the very least, it puts FOI on the agenda. It may not be a very sexy topic, FOI, but it is absolutely crucial in the transparency and the good working of government. It is important that this topic is debated in this way, with good ideas coming forward. FOI is one of the few avenues that Australian citizens can access the information and documents held by government agencies. I believe Senator Ludwig's bill improves the quality and access to FOI decisions and makes that FOI framework more transparent and accessible.

The bill requires government agencies and ministers to publish the exact wording of FOI requests and a statement of reasons concerning the decisions to allow, refuse or edit the release of requested documents. In this way, it would set up a paper trail, an electronic trail of what FOI requests have been made and what happened to them. It improves the ability of FOI to ensure that information from government agencies is 'readily available to persons affected by those government agencies'. The bill will make it easier for applicants to build on the decisions of previous FOI applications and avoid unnecessary duplication of requests. So when the government says this is going to be unwieldy and it is going to cost more, in fact it will not. It will mean, by having this electronic trail of requests, fewer unnecessary FOI requests. People will be able to see what has been requested and what the response has been rather than putting in another application. This will reduce red tape—and I know that the government loves reducing red tape. I think Senator Ludwig is here to help the government to reduce red tape by having a more streamlined system of FOI. I believe it protects the privacy of individuals by making sure personal information is removed. The government needs to acknowledge that its record on FOI, since coming to office, is a very patchy record.

The government remains committed to defunding the Office of the Australian Information Commissioner—an office that provides oversight of large numbers of FOI decisions in a way that is far more cost-effective than having to go to the AAT, with all of the costs that involves. I am currently in the middle of an issue involving some Defence documents that I am looking for through the Office of the Australian Information Commissioner—and I have just reminded myself that I need to provide a response to the Office of the Australian Information Commissioner's request to respond to Defence's position. Who knows, I may end up in the AAT over that request relating to defence issues arising from the Winter-White report that I believe ought to be disclosed to the people of Australia.

Office of the Australian Information Commissioner figures reveal that in the 2014-15 financial year it finalised 482 applications for review of FOI decisions and finalised 82 FOI complaints. If you consider what it does and what the costs would be if you went to the AAT, you can see it is a very cost-effective agency. It is a false economy to defund that office. I think it is interesting to reflect on an opinion piece by Sean Parnell, The Australian's FOI editor, headed, 'Open government? We’re still waiting'. He said:

The introduction of tougher security laws and secrecy provisions in Canberra has yet to be balanced out by any increase in government transparency or citizen engagement.

He made the point that:

While Malcolm Turnbull became Prime Minister promising to be “truly consultative” and support “open government,” any such change has so far been internal, with no obvious policy or cultural shift.

He refers to the Office of the Australian Information Commissioner and the cuts to that office—the attempts to defund that office—which are very disturbing.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

Contrary to the will of parliament, too.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Contrary to the will of the parliament—that is right, Senator Collins.

It is interesting what the opinion piece of Mr Parnell makes of the whole issue of Australia joining the Open Government Partnership:

The former Labor government also committed Australia to join the Open Government Partnership, a global transparency and citizen engagement initiative. Under the Coalition, however, nothing has happened, with responsibility for the OGP shifting between ministers and becoming a “captain’s pick” for Abbott.

Mr Parnell concludes his opinion piece by saying:

While there are rumours Turnbull will soon have Australia re-embrace the OGP, cultural issues remain. Several requests last week for the Prime Minister’s office to clarify his position on the OGP failed to elicit any response, let alone a positive one.

I am hoping that this is something that the new Turnbull administration will consider.

To be a truly consultative and open government, as the Prime Minister said—and I take him at his word about his desire to do so—embrace the OGP; embrace reform to the FOI laws, such as the bill that Senator Ludwig has put up, which I think will lead to greater transparency and greater efficiency in FOI; and ensure there is appropriate funding for the Office of the Australian Information Commissioner. I support this bill.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

The Freedom of Information Amendment (Requests and Reasons) Bill 2015 builds on Labor's long commitment to the principles of freedom of information and the public's right to know, and on a 2007 pledge to reform freedom of information legislation to promote a pro-disclosure culture. I know some senators are cynical about major parties in government maintaining commitments to freedom of information, but I believe it can be clearly demonstrated that that is, in fact, what Labor has done. This bill builds on that work. Labor recognises that further reform is needed to meet current and future challenges to freedom of information legislation, and we will continue to advocate for such reforms in opposition and in government.

Good governance depends on integrity within government and the public's trust in the fair, accountable and transparent operation of government instruments and processes. This is where the current Abbott-Turnbull government falls down. Just to pick a snapshot, we see today issues in the press around Mr Brough and ministerial accountability, and issues around Senator Brandis' slush fund and the creation of that. Senator Xenophon has raised the issues around the Office of the Australian Information Commissioner and this government's attempt to defund that very important freedom of information agency, despite the will of this parliament. And the list goes on.

Perhaps the most stark example, in my mind, were the comments by Prime Minister Turnbull about cabinet ministers utilising non-official sources of communication. On the face of it, and in the discussion around metadata and sexy forms of communication, social media and the like, this may not seem that important. But I remind senators and those who closely followed our discussions on retention of metadata, it is quite contrary to this government's rhetoric in other areas, such as national security—and certainly with respect to freedom of information. Senator Xenophon, just before you leave, I hope that, in the matters you are pursuing with Defence, we do not find that this culture has permeated even organisations such as the Department of Defence and that the material you are seeking does not ultimately end up being encrypted and/or deleted, as the current Prime Minister is encouraging cabinet ministers to contemplate.

These are very serious matters and, if anything, they remind me of the reckless behaviour of the Prime Minister in his former role, before his position as Leader of the Opposition was terminated in the OzCar-Godwin Grech saga. Those senators who may not have followed this closely may not understand that metadata was a key issue in that case as well, as was access to freedom of information, or indeed this parliament's or this Senate's access to information. What occurred in that case was that the Senate Committee of Privileges in investigating that matter was provided with detailed metadata from the Treasury which identified quite reckless behaviour by the then Leader of the Opposition in relation to his direct communications with Godwin Grech and his pursuit of the OzCar affair. I had hoped that Mr Turnbull had learnt from that experience. But, in recent times, in hearing him talking about cabinet ministers utilising non-official sources of communication, those hopes were of course dashed. If he demonstrates further examples of recklessness like this, I suspect that the honeymoon will not last as long as some commentators think.

As I said, good governance depends on integrity within government and the public's trust in fair, accountable and transparent operation. And certainly while there is talk at the moment at the senior levels of government, we will see in the not-too-distant future whether this government can walk that talk. Good governance also requires balancing the need for confidentiality with the legitimate right of the public to know about departmental operations. In our previous reforms to freedom of information legislation, Labor has always strived to strike that balance. Unfortunately, though, as noted by Senator Ludwig when he introduced the bill in May this year, the Abbott—now Turnbull—government 'jeopardised the balance that Labor had put into the Freedom of Information Act to favour secrecy, which has led to less transparency in government'. Indeed, the Public Service Commissioner went as far as to suggest, in comments noted in the Canberra Times in March this year, that government changes to freedom of information laws were 'pernicious'. Can you imagine a Public Service Commissioner suggesting that the behaviour of the government of the day is 'pernicious'?—that is a good word for Senator Brandis, although I doubt that he has taken those thoughts into account. But these comments reflect broader concerns about the government's attempts to weaken freedom of information rights by introducing a 2014 bill to abolish the Office of the Australian Information Commissioner.

Let's move to a little bit more detail about how the government's behaviour with that office demonstrates its lack of commitment to freedom of information. That bill would remove the role of oversight from the independent Information Commissioner. The bill has not been debated in the Senate, because the government cannot progress it, cannot convince the crossbench that this is a measure that we should support. But Senator Brandis continues to avoid directly addressing concerns about the future of the Office of the Australian Information Commissioner. Can we take it that Senator Brandis's recalcitrance on these issues reveals a deeper distaste among his colleagues for the public's right to know how the Abbott-Turnbull government operates?

Despite numerous estimates sessions in which I have questioned Senator Brandis on these issues, and in light of the fact that the government closed the Canberra office of the Office of the Australian Information Commissioner in December 2014, almost 12 months age, leaving the Information Commissioner and the Freedom of Information Commissioner to work from home—in his kitchen, I recall, and I suggested that maybe he had the Thermomix in there to jumble up the data that the government seeks to conceal—there is still no sign of the government responding to these concerns and indicating whether it will proceed with this legislation or whether it will reaffirm the freedom of information culture that has been painstakingly fostered in Australia over many decades.

At least there are voices of reason urging them to make their position clear, such as a former New South Wales state Liberal Attorney-General John Dowd, who in August this year cautioned Senator Brandis that the Office of the Australian Information Commissioner can be abolished only by statute, not by defunding it—which is, of course, Senator Brandis's preferred method of operation, if you look at his experience with the Australia Council, setting up slush funds, and I can think of a few other agencies where this method applies. In his role as president of the Australian section of the International Commission of Jurists, which aims to protect the rule of law, John Dowd went on to warn the Attorney-General that attempts to undermine statutory authorities by executive government through non-legislative means threatened the separation of powers and—one of Senator Brandis's favourite phrases—the rule of law. How he can stand in his current portfolio and continue to utilise these sorts of methods astounds me.

But in reference to Senator Ludwig's bill, the fact that requests under the Freedom of Information Act can currently be refused or documents edited without explanation from agencies or ministers serves only to undermine public trust that government is adhering to those principles. This bill seeks to ensure transparency and accountability within the framework of government decisions concerning freedom of information requests by amending the Freedom of Information Act 1982. The bill's other main purposes include allowing members of the public to be informed about requests made and to receive an explanation as to why documents have not been released, allowing applicants seeking similar documents to build on requests, and reducing duplication in requests. It would achieve these goals by requiring government agencies and ministers to publish the exact wording of freedom of information requests. It will also require government agencies and ministers to publish a statement of reasons concerning their decision to allow, refuse or edit the release of requested documents.

Supporting these measures by passing this bill will make it clear that the government is as committed to good governance based on freedom of information principles as is the opposition. Either way, Labor will continue to defend transparency and accountability in government by protecting the public's right to know, keeping pace with modern challenges to freedom of information through reform.

Bridget McKenzie (Victoria, National Party) Share this | Link to this | Hansard source

I rise this morning to speak on the Freedom of Information Amendment (Requests and Reasons) Bill 2015. This bill amends the Freedom of Information Act 1982, which deals with issues of FOI, to require government agencies and ministers to publish the exact wording of freedom of information requests. The amendment will also require agencies and ministers to publish a statement of reasons concerning the decision to allow or refuse the release of requested documents. The bill has the stated aims of ensuring that transparency and accountability are included within the framework of government decisions concerning freedom of information requests, allowing the public to view requests that have been made and the reasons documents were or were not released, allowing applicants seeking similar documents to build upon previous requests, and reducing duplication of requests.

Furthermore, Senator Ludwig's bill states:

Publishing the reasons for decisions will allow for scrutiny of departmental decisions and open the door to further reform to allow review of requests by parties other than the initial applicant.

Section 11C of the FOI Act currently requires agencies and ministerial officers to maintain an online disclosures log. The disclosure log must either publish information made available in response to an FOI request or provide details of how the public may obtain that information. Senator Ludwig's bill proposes to amend these requirements by removing the option of providing details of how the public may obtain information, requiring the publication of the exact wording of the FOI request and requiring the publication of a statement of reasons concerning the decision to allow or refuse the release of the requested documents.

The government does not support this bill for several reasons. One of them is that there is now going to be a new definition of 'working day'. Item 1 of Senator Ludwig's bill inserts a new definition of 'working day', in the interpretation section of the act, as follows:

working day, in relation to a requirement in a provision of this Act to publish information, means a day that is not:

(a) a Saturday; or

(b) a Sunday; or

(c) a public holiday in the place where the function of publishing the information under the provision is to be performed.

As the term 'working day' is used only in section 11C, it is difficult to see how this will eliminate confusion concerning time frames for publishing information, as is the suggested intent of the amendment.

I could go on and on about why this side of the Senate will not be supporting Senator Ludwig's bill. I know my colleague Senator Johnston has much to add to this debate. I will consider leaving my remarks there, and allowing Senator Johnston to make his contribution. Madam Acting Deputy President Lines, can I just get some clarification? Once I finish speaking, will we be going to Senator Ludwig, as the mover of the bill, to the close the debate?

Sue Lines (WA, Australian Labor Party) Share this | Link to this | Hansard source

My understanding, Senator McKenzie, is that it is whichever senator is standing has the call.

Bridget McKenzie (Victoria, National Party) Share this | Link to this | Hansard source

Okay. Another reason why this side of the Senate will not be supporting the bill concerns issues in relation to publication of information and access to documents. Items 2 and 3 of Senator Ludwig's bill remove the option for an agency or a minister to publish details of how information may be obtained rather than the information itself. Currently, subsection 11C(3) provides that the information disclosed in the request must be published on the agency or ministerial website by making the information available for downloading from the website, under 11C(3)(a), or by publishing on the website a link to another website from which the information can be downloaded, under 11C(3)(b), or by publishing on the website other details of how the information may be obtained, under 11C(3)(c). Items 2 and 3 of Senator Ludwig's bill amend subsection 11C(3) to remove the option of simply publishing on the website details of how the information may be obtained, rather than the information itself.

Senator Ludwig states that this amendment is '… designed to provide the public with easy access to documents released under the FOI Act.' The current requirement is for information that is released to be published for the public generally on a website. Some agencies publish the documents released on their websites. I know Senator Johnston has a great interest in this area, so I might sit down.

David Johnston (WA, Liberal Party) Share this | Link to this | Hansard source

This is a very interesting piece of private member's legislation requiring agencies and ministers to publish the exact wording of freedom of information requests or the answers thereto. The amendments, as I understand them, in the brief time that I have had to review them, will also require agencies and ministers to publish a statement of reasons concerning the decision to allow or refuse the release of requested documents. Of course, whenever someone is asked to present reasons, clearly those reasons will be the subject of judicial review at some further point in time, or pursuant to the review provisions contained in the Freedom of Information Act. Asking ministers to provide reasons that will be the subject of review is a very heavy burden and one which should not be undertaken lightly in terms of increasing and exposing the executive to legal process.

The bill has the stated aims of: ensuring transparency and accountability are included within the framework of government decisions concerning freedom of information requests; allowing the public to view requests that have been made and the reasons documents were or were not released. The current situation, as the law provides for today, allows for just that; allowing applicants seeking similar documents to build upon previous requests; and reducing duplication of requests. All of these appear, superficially, to be quite laudable objectives. One has to ask the question, given that the opposition were in power for six years in Australia from 2007-2013: why these amendments and changes were not brought forward then. I think I have a bit of an inkling as to why that was: transparency was not something that was high on their agenda at the time. Indeed, one just momentarily needs to reflect on the modelling for the carbon tax and how that was unavailable to any members of parliament or to the public and was continually denied in supporting the financial workings of that carbon tax. In six years, there was no change, no transparency, under Labor, and now we have a private senator's bill that seeks to put an enormous administrative burden upon the government of the day—namely, the Turnbull government.

Section 11C of the FOI Act currently requires agencies and ministerial officers to maintain an online disclosure log. The disclosure log must either publish information made available in response to an FOI request or provide details of how the public may obtain that information. Providing details to the public as to how to go about obtaining the information is a stock standard, usual and understood methodology in the accessing of government documents. Why would you want to muck around with that? That is a bit of a mystery that the good senator, Senator Ludwig, needs to explain to us.

Senator Ludwig's bill proposes to amend these requirements by removing the option of providing details on how the public may obtain the information. That seems to me to be a very retrograde, backward step. The bill is entitled 'freedom of information' and yet we are not going to tell the public how to access that information. Secondly, it requires the publication of the exact wording of the FOI request and, thirdly, it requires publication of a statement of reasons concerning the decision to allow or refuse the release of the requested documents. I have dealt with the matter of providing those reasons.

The current disclosure log requirements, together with the Information Publication Scheme, or IPS as it is called, were part of the previous Labor government's package of FOI reforms in 2010. These reforms were intended to reduce the number of FOI requests over time, with the FOI Act providing access to information through agency-driven publication rather than only in response to requests for documents. However, the Hawke FOI review found that the implementation of the Information Publication Scheme had, strangely, the completely opposite effect—that is, instead of making things easier, more accessible and more transparent, the IPS and disclosure log requirements in many cases increased the FOI processing costs, with resources being diverted from other key areas to assist with FOI processing.

Of course, Senator Ludwig has a very illustrious record of asking page after page of quite superfluous questions at both Senate estimates and in FOI requests. As well as increasing the cost of FOI processing, these initiatives have not resulted in any reduction in the number of FOI requests received by agencies and ministers. So the Labor Party's reform measures of 2010 actually achieved, in my understanding and in my argument, the opposite of what was intended. Things became more process bound and more costly and it became more difficult for the government of the day to respond to and answer the FOI requests, which I would have thought was completely contrary to what was intended. Similarly, this private senator's bill is going to exacerbate the situation, because it simply has not been thought through properly. If it has been thought through, I think it has an ulterior motive to it. In fact, since FOI reforms commenced in 2010, the number of FOI requests has increased from 23,605 in 2010-11 to 28,643 in 2013-14.

I note that the bill seeks to change the definition of 'working day'. I find that very interesting and a little incongruous. 'Working day' has a common or garden-variety meaning in the minds of most normal people. A working day is a day where people are actually working. Monday to Friday is the Interpretation Act's assessment of what are working days, in my understanding. The term is only used once in the legislation, in section 11C. It is very difficult to see how an artificial, contrived definition of the words 'working day' will eliminate confusion concerning time frames for publishing information. As is usual with legislation that has not been thought through, this will be even more confusing. Accordingly, it is a significant flaw in this legislation. It provides for unintended consequences, which is rather typical of the sort of half-baked legislative understanding that comes to this place from the Labor Party from time to time—only rivalled, usually, by that of the Greens.

Items 2 and 3 of Senator Ludwig's bill remove the option for an agency or minister to publish details of how information may be obtained rather than the information itself. Currently section 11C(3) provides that the information disclosed in the requests must be published on the agency or ministerial website, by, firstly, making information available for downloading from the website—that is section 11C(3)(a)—and, secondly, publishing on the website a link to another website from which the information can be downloaded, which is in section 11C(3)(b), or, thirdly, publishing on the website other details of how the information may be obtained. That is found in section 11C(3)(c). Items 2 and 3 of the good senator's bill amend section 11C(3) to remove the option of simply publishing on a website details of how the information may be obtained, rather than the information itself.

I must say I find this legislation and the intent behind it very, very vexing and troubling. Why would you want to close off an avenue for members of the public to find and access further information? This is very, very peculiar. I am not sure what the good senator's intentions are here. Senator Ludwig states that this amendment is designed to provide the public with easy access to documents released under the FOI Act. The current requirement for information to be released is that it is published for the public, generally on a website. Some agencies publish the documents released on their websites together with the FOI requests. What this will do is remove the flexibility, where the information cannot be readily published on a website, of providing details of how the information can be accessed. And so references to the Australian Bureau of statistics and other annual reports where there is a wealth of other information—all of those sorts of things—apparently cause some angst to the senator in the presentation and motivate him to present these amendments. I must say I find all of that very, very confusing.

It may not be straightforward for an agency or minister to publish some documents on a disclosure law in an accessible format or to convert documents to such formats within 10 working days. Those difficulties and disabilities are not addressed in the legislation; as one would expect, the details have not been considered—to use a colloquialism: the whole thing is a bit half-baked.

This may be an issue, for example, if information ha s been redacted from a document or where the voluminous nature of the document is only available as a hard copy or in a PDF format. Removing flexibility will impose an administrative burden on agencies and ministerial offices in preparing documents for publication within 10 working days of the information being released. This could create challenges for agencies and ministers in managing an increased FOI workload—and I come back to the numbers that I gave previously: we started off with the Labor Party's amendments with 23,605 FOI requests in 2010, and the amendments have generated an increase to 28,643 in 2013-14. As I was saying, these amendments are going to generate challenges for agencies and ministers in maintaining an increased FOI workload and impact on the processing of FOI applications. That all converts to one thing: cost.

We all know on this side of the chamber that the very last thing the Labor Party—and its senators—ever think of in legislation is the cost. They have absolutely no regard for the respect required for taxpayers' money in these crazy schemes that they seem to want to implement.

The new section 11D will also require agencies and ministers to publish a statement of reasons concerning the decision to allow or refuse the release of requested documents. Section 26 of the act currently provides for statements of reasons to be given where a decision is made to refuse access. Whether you grant or refuse, it appears that you will have to provide reasons as to why you are granting.

Section 22 provides reasons to be given where an edited copy of a document is provided. The difference with the new provision is that a statement of reasons is also required when access is granted in full —I would have thought that is completely ridiculous and quite stupid, but what am supposed to expect here? In addition, all statements of reasons, as well as the requests themselves, must now be published within 10 working days. What that means, given the change in definition of 10 working days, I am not sure. I think we are all left to wonder why we are taking the definition of 10 working days and turning it into something not readily understood. Ten working days—if it were Monday to Friday days—or two weeks are still not a lot of time.

Once again, this new provision will impose a substantive administrative burden on agencies and ministerial officers, which could result in significant processing delays in other aspects of FOI processing. Of course that is something which the good senator has completely ignored.

Senator Ludwig states that this measure will facilitate more practical use of freedom of information requests, reduce duplication of requests and open the door for further reform by parties other than the initial applicant. I would like to see that because, as I have said, having tried once at reform, we now know that those reforms and their unintended consequences made the process more difficult, more expensive, challenged schedules and generally achieved objectives in complete opposition to what the original intent of those reforms was. Once again, the Labor Party lived up to everybody's expectation that they really have no idea what they are doing when it comes to reform.

It is more likely that publishing reasons for decisions will result in overburdened agencies that are struggling to manage increasingly heavy FOI workloads , taking shortcuts and adopting published reasons rather than making a decision based on the circumstance of each particular request. I think that is a very logical and likely outcome which I would emphasise to anybody listening to me speaking now.

In conclusion, the government is committed to being a transparent, accountable and open government. The FOI Act is an important accountability measure, which facilitates the open and tran sparent operation of government, and the dealing with individual proprietary rights and privacy matters of people from time to time, as it must, in carrying out all of the heavy burden of the day-to-day activities of good government.

Rather than ensuring accountability and transparency, the measures in the bill will compromise the effectiveness of the decision-making processes under the FOI Act—and compromise in a very substantial way. It is very unlikely that the measures in the bill will reduce duplication of requests, as requests cannot be refused where information is publicly available free of charge or where information that would substantially address the subject matter of the request is regularly made available—for example, in annual reports or otherwise; and I have dealt with that.

Nor can a request be refused if the request is substantially the same as another FOI request that has already been made. So every second day of every month of every year you can ask for the same information because it inconveniences the government. That, I think, is the nub of what this might be all about. An applicant will not need to provide a reason for making an FOI request. So what this does is open the floodgates to some form of process here that is designed to stand on the hose, to be expensive and to cause the government of the day a lot of administrative woe and problems. That is all very well but, at the end of the day, I think ordinary citizens of this country need the government of the day to work in a cost-effective and efficient manner and not be completely focused on the process of FOI requests.

This bill will not reduce duplication of requests and it will not reduce the number of FOI requests. As has been clearly set out, their reforms failed to deliver. Notwithstanding that they expressed an intent to reduce the number of requests, those requests have increased. Instead, the bill will impose further unnecessary steps and procedures into existing processes for access to government information under the FOI Act. This will increase the costs, as I have said, and will increase the complexity of FOI processing. Remember: FOI is for ordinary citizens. They are not lawyers; they simply want information. So this bill is seeking to increase the costs associated with processing FOI requests and increase complexity and will result in significant processing delays. I would have thought that that was completely in opposition to what we in this place should want to do. It is a mystery to me why a senator of Senator Ludwig's standing would want to come forward with such a nonsensical, stupid bill.

Debate adjourned.