The weakening of the freedom of information regime has occurred without fanfare, eroding an important mechanism for holding governments accountable and safeguarding against abuse of power and wrong decisions.
The government announced in the budget last year that it planned to wind up the OAIC. Ostensibly, this was a savings measure, worth about $10 million over four years, but it was also a ploy to limit FOI requests and appeals.
When it was clear the senate would baulk at passing the legislation, which Labor and the Greens argue will reduce oversight of government actions, McMillan was left in limbo, limping along on rationed resources.
His Canberra office, where 25 staff used to work, closed in December. His departure will further weaken the office, which opened in 2010. A year earlier Labor’s special minister of state, John Faulkner, said: “These reforms will change the law, but they will also demonstrate the government’s commitment to culture change, to a shift from a culture of secrecy ... to one of openness and transparency.”
FOI laws had existed since 1982, but the Faulkner reforms were the first attempt to make them really work. Faulkner pursued his reforms despite resistance from within the then Labor government and the public service.
His aspiration was at least partially achieved. The biggest sign of change was in 2010, when departments published, in response to FOI requests, the briefings they had prepared for the incoming government, providing information about the policy challenges ahead. After the Coalition came to power at the 2013 election, requests for these documents were denied, in an early sign of the tide turning against transparency. Under legislation prepared by the Abbott government, Attorney-General George Brandis and his department will take over some of the FOI functions and appeals will again be sent to the Administrative Appeals Tribunal, attracting an $860 filing fee, which will deter many applicants.
Timmins says the public service culture has already shifted back in favour of non-disclosure.“I think there’s been a fair bit of gaming of the system on FOI,” he says. “With the OAIC thought to be on death row, agencies have worked on the basis in some cases, I think, that if you knock back a [FOI] request, you won’t have to worry too much about someone taking you on. These days, there’s no great incentive to make a correct and proper decision.”
Senior bureaucrats have also mounted the case for a further weakening of FOI laws. Most notable were the comments from John Lloyd, the new public service commissioner, who set the tone for the rest of the bureaucracy in his first public speech in March.
“FOI laws are very pernicious,’’ said Lloyd, whose past roles include serving on the Australian Building and Construction Commission, the Australian Industrial Relations Commission and as director of workplace relations and productivity at the Institute of Public Affairs.
“I think they [FOI laws] have gone beyond perhaps what they intended to do, and I think they do make us a bit over-cautious and make some of the advice more circumspect than it should be, and I hope the government will address that and perhaps reassess the extent of some of those FOI laws.”
Brandis’s office did not respond to inquiries about whether anyone would be appointed to replace McMillan or whether he agreed with Lloyd’s description of the FOI regime.