The Freedom of Information Act Amendment (New Arrangements) Bill, before the Senate since October 2014 but not brought on for a vote is not among the bills reintroduced during the two days parliament met in April.
The bill still gets a mention on Page 31 of the Senate list of Bills in the lapsed due to prorogation of the last session category.
As at COB on 19 July eight bills were introduced or reintroduced into the House of Representatives and 59 in the Senate.
Most, introduced by Labor and The Greens should be on a wish list instead, given Budget week is the only sitting before the PM says we are off to the polls.
This includes Senator Ludwig's Private Member's Freedom of Information (Requests and Reasons) Bill, a bill opposed by the government and thus with no prospects of passage in this parliament at least, but Labor senators canvassed its benefits during debate on FOI.
Senator Wong asked for an explanation from the Attorney General why a question on notice to the Prime Minister about the government's performance on freedom of information remained unanswered three months later. The senator didn't get much of answer other than the Attorney General said a request to him in the same terms was complex, sought "very detailed data" over a two year period and the three months included the summer break... Hmm.
In debate that followed Senator Wong and Senator Ludwig slammed the government's record on transparency and freedom of information with Senator Ludwig making what amounts to a big call given 34 years of history:
"Senator Brandis presides over the worst administration of FOI that this country has ever seen.."
Senator Wong (extract)
I had hoped—to be completely open with the Senate—that the change of Prime Minister from Mr Abbott to Mr Turnbull might see a different approach when it came to freedom of information. Yet regrettably to date that has not been the case, although I would note that I think I am now getting responses from Prime Minister and Cabinet which actually have names at the bottom as opposed to FOI officers, so I suppose that is a good thing. This goes fundamentally to public accountability. We know that the government of the day is accountable to the Australian people through the parliament. Too often we see this government treating this parliament and this Senate with contempt. We see senators asking questions on behalf of the public in question time and we see stonewalling and blustering on the other side. We see senators seeking information through questions in writing, and yet ministers fail to respond within the time limits set by the Senate, and, when they do, frankly, often we see obfuscation, evasion and outright deception. I am often reminded of the former Prime Minister Mr Abbott's promise before the last election: 'We will restore accountability and improve transparency.' I think that was yet another broken promise, and regrettably it appears to be a broken promise that is being continued under Mr Turnbull. I say to the government: do not have a contemptuous approach to accountability. Please, I would like a response on the freedom-of-information statistics that we have requested.
Seantor Ludwig (full text)
Thank you, Deputy President. Firstly, I would like to say that, in the response that Senator Brandis gave during his second contribution, he did say that the information was—these are my words—complex and that sufficient time was required to be able to respond to all of the questions asked. In a perfect world, you could agree with that contention by Senator Brandis. However, Senator Brandis presides over the worst administration of FOI that this country has ever seen. Put in that context, it is simply unsustainable that Senator Brandis can hold that point of view.
This government wants to dismantle the FOI regime that has been in place for many years. It has legislation sitting on the Notice Paper to do just that. This government does not support the FOI regime we have now, let alone the previous FOI regime. The coalition government is and continues to be unhelpful when it comes to FOI requests. That is clearly what has prompted Senator Penny Wong to ask for the information that has been asked for in question No. 2876, because it will demonstrate, if the government ever deigns to answer it, how this government treats FOI in this country.
The information that has been requested has been broken down and is to be broken down by both year—that is, 2014 and 2015—and how many requests were received. In truth, these are simple requests that the department should have the statistics for. They should keep those statistics on the web, and they should make them freely available for the public to see—of course de-identified if there should be any personal information there. If they had such a regime in place, it would be easy for senators to look at the type of material that is being sought and the number. For argument's sake, one of the requests is: how many requests were not acknowledged within the statutory time frame of 14 days as required by section 15 of the act? These are simple issues where the department themselves should maintain a relevant log so that they can provide an answer about where they have failed to meet section 15 requirements.
For how many requests was notice of a decision not provided to the applicant within the statutory time frame of 30 days as required by section 15? Again, this is a simple log request. This should be logged. They should have it as a KPI for the department and be able to advise through their website when they do not meet the requirements of section 15 of the act. And, of course, should extensions be granted, this information—if they truly did embrace FOI—would be available.
But, quite frankly, this government does not embrace FOI in any way, shape or form, which prompted me, in fact, to introduce a private senator's bill to encourage this government to embrace FOI, freedom of information, more fully than it currently has. The bill that I sought to introduce would go a long way—if the government agreed to it in the first place—to meet the requirements that are now being sought by Senator Wong. The FOI bill that I put forward would insert section 11D into the Freedom of Information Act 1982 to require government agencies and ministers to publish the exact wording of each FOI request made and a statement of reasons from the decision maker.
This measure is designed to make governments more transparent. It would allow the public to see what requests have been made and why documents were or were not released. It would mean that applicants seeking similar documents could build on each other's requests, which would also reduce any duplication of requests. And, of course, publishing the reasons for decisions would allow for scrutiny of departmental decisions and open the door to further reform to allow review of requests to parties other than the initial applicant.
The government does not support this measure. Why? I come back to my first submission in this opportunity to speak about question on notice No. 2876. This government has not embraced and does not want to embrace freedom of information at all. You only have to look at the coalition's history on FOI to consider how poor it has been. The bill that I sought to introduce, the Freedom of Information Amendment (Requests and Reasons) Bill 2015, did seek to amend the Freedom of Information Act, as I said, to require government agencies to publish those requests.
But if you look at Labor's approach, since the Australian parliament first considered introducing freedom of information legislation in the 1970s, Labor has worked hard to strengthen these laws to improve transparency in government and to champion the right of the public to know. In 2007, Labor made an election commitment to reform freedom of information legislation to promote a pro-disclosure culture. Senators on this side of the chamber recognise that freedom of information is essential to Australian democracy. It is the right of the Australian public to know what their elected representatives are doing in their name.
Mr Turnbull and Senator Brandis lead a government shrouded in secrecy that has sought to hide what it is doing from the Australian public. The non-answer to question on notice to 2876 again makes the simple point that this government does not have a pro-disclosure culture, does not want light shone on its workings. We on this side of the chamber support a pro-disclosure culture. The government will stop at nothing to avoid scrutiny by the people that placed their trust in its hands.
Again in 2007, Labor in opposition made commitments to: revise the FOI Act to promote a culture of disclosure and transparency, appoint a FOI commissioner, rationalise the exception provisions, publish guidelines with the overriding principle that information is withheld only when to do so is in the public interest, and review FOI and the charges to ensure that they are compatible with the objectives of disclosure and transparency. And of course in government, Labor followed through these commitments and introduced wide-ranging reform in the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act in 2009, the Freedom of Information Amendment (Reform) Act 2010 and the Australian Information Commissioner Act 2010. They were reforms to the FOI Act that made it easier for applicants to request information and to seek review of decisions.
Among the first of those changes was to remove the availability of conclusive certificates as a device for preventing full merits review of FOI decisions, to refuse access to documents.
This was during a period when the Howard government again refused to provide FOI requests any information. It continued what this government is continuing today—to embrace a non-disclosure culture, to consider secrecy is paramount. The reforms that Labor introduced were about tearing down that wall of secrecy that the Howard government had put in place. What this government is now doing is rebuilding that wall brick by brick to ensure that it can hide behind the legislation, hide behind non-answers to questions, hide behind a wall of secrecy.
However, the reformed FOI implemented a presumption of openness and maximum disclosure—that is, while protecting national security and while ensuring personal private information is kept private. But what Labor wanted to do was to ensure that we had an open and transparent government to ensure access to information unless there is an overriding reason why it should not be released. So it was not a position where Labor was advocating wholesale release. Labor ensured that there would be an overriding ability of government to keep matters secret that needed to be kept secret or that needed to be withheld for good reason.
Labor established the Office of the Australian Information Commissioner and the two statutory positions of the Australian Information Commissioner and the FOI Commissioner to provide independent oversight and review of the FOI regime. The reforms encourage pro-active publication of information under the information publication scheme and this requires agencies and ministers to list information released in response to an FOI request in an online disclosure log subject to reasonable exceptions including the protection of an individual's privacy. All of this is about ensuring that the Public Service and the ministers implementing the will of the people with their warrant would still ensure that it was done in a way that would allow the public to understand and follow what they were doing. The reforms encouraged pro-active publication of information. What this government has done since coming to office is wind all that down. The answer to question on notice 2876 is simply another example of a government that does not want scrutiny.
The 2010 reforms by Labor made it easier and cheaper for requests to be made by simplifying the requests procedure, by abolishing application fees and charges for requests of personal information, and by putting the subtle pressure on agencies to observe request processing time limits. All of this was designed to encourage and slowly move to a pro-disclosure culture. The ambit of the FOI Act was extended to documents held by a contracted service provider delivering services to the public on behalf of the agency. It also made government archival records outside of the FOI Act available for open access progressively sooner.
Finally, the reforms strengthen the review and complaint process by allowing individuals to request the Information Commission to review decisions made under the FOI Act. This encourages agencies and ministers to make sound and justifiable decisions in the first instance. These reforms were implemented with the purpose of revitalising the FOI Act so that it delivered on the important objects of increasing participation in and the accountability of government because, in context, that was after a very long period of Howard administration that had ensured secrecy and the non-disclosure culture within the bureaucracy. What we now have is a government that is seeking to bring back all of that non-disclosure culture of secrecy surrounding the administration.
They are infecting the bureaucracy with that same culture, because they do not want the bureaucracy to be pro-disclosure and they want the bureaucracy not to err on the side of positive release. They want the bureaucracy to maintain the secrecy of government, even when it flies in the face of common sense and where you can have open and transparent government. You do not need the badge of national security to protect it. If it can be protected and it should be protected because of national security or some other reasonable reason, then it can be.
The reforms in the new bill that I introduced would have the key purpose of ensuring that transparency and accountability are included within the framework of government decision making concerning freedom-of-information requests. It would allow the public to view requests that have been made and the reasons why documents were or were not released, allowing applicants seeking similar documents, for example, to build on the requests to garner further information on a particular topic and to reduce the duplication.
One of the complaints made by this government is that we make too many requests for information and that many of them are duplicate. Each senator is asking, and it is not surprising, similar questions about information that this government holds. If they had a pro-disclosure culture in the first instance—if they published the requests—then in fact they could reduce the duplication themselves. But that is not their purpose. Their purpose of complaint about a duplication is to stymie requests, to block requests and not to provide information.
Under the current framework, requests made under the FOI Act can be refused or documents may be edited with virtually no justification from government agencies or ministers. This does pose a clear threat to the core tenets of transparency and accountability within government decision making. What this government is doing more predominantly is simply not answering questions, or providing answers to questions very late or very close to the next round of estimates so that there is no ability to have time to absorb and read them and find new questions or new parts to follow, given the paucity of information that sometimes comes out of those answers in any event.
This private senators' bill that I sought to progress would ensure that FOI requests and reasons for decisions are made accessible to the public without charge. The result would be reduced duplication of requests, freeing up precious administrative resources. This government does not want that. It argues, broadly, that answering questions is resource intensive. There are many simple steps that the government could take to reduce that by publishing them, putting them online or using online logs. Much of the request that Senator Wong is seeking under 2876 could be dealt with in such a way that any reasonable government that embraces FOI, that embraces transparency and that embraces openness would already have information online and available for the public to use.
But it is not surprising that this government does not want to answer the question, and answers the question in such a way that there are many questions that will take many hours of work to bring the information together; it is ultimately complex. These are the same arguments that the Howard era progressed as well. It is a sad refrain about FOI coming from this government.
Given the government's record, it came as no surprise when they introduced a bill last year to abolish the OAIC, removing the role of oversight from the independent Information Commissioner and giving it to the government's own minister, Senator Brandis. The bill is yet to be debated in the Senate. However, the estimates last year revealed that the government had already taken it upon itself to close the Canberra office of the OAIC in December 2014, leaving the former Information Commissioner and the former FOI Commissioner to work from home. This is the style and type of government and how it addresses FOI more broadly. It does not want scrutiny, it does not want transparency. What that means is that the remaining office of the OAIC has been sitting in limbo since the introduction of the bill, discharging only privacy regulatory functions. This highlights the problem that this government has.
It does not want to answer questions on notice. There are many questions on notice that have not been answered within the relevant statutory time frame because this government continues to embrace secrecy and does not want transparency and accountability. The most devastating aspect of the bill that the government seeks to introduce will abolish the opportunity that members of the public currently have to request the independent Information Commissioner to review a refusal by government agencies or ministers to provide documents under the FOI Act. What this government wants to do is simply have a minister get up in this chamber and say, 'It's a very complex question that you have asked, Senator Wong, and it will take forever for us to be able to collate the information, put it together and provide it to you. It will be expensive. It will be difficult to do, but we'll try our hardest at some point to be able to do that.' That is what this government wants to be able to respond with to every question which is probing, which is seeking to provide some transparency and scrutiny of this government's operation— Time expired)