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Sunday, March 20, 2016

Attorney General Brandis maintains silence over the Government's record on Freedom of Information

In the Senate last week Senator Penny Wong asked about a Freedom of Information request made to the Attorney Generals' Department three months ago which remains unanswered. 

The debate went all over the place from there with Attorney General Brandis darting and weaving over the specific issue before maintaining silence when Senator Joe Ludwig (pictured) made some general observations, about FOI administration. While time expired there are plenty of opportunities for Senator Brandis to set the record as he sees it. Senator Ludwig said:
 "..Senator Brandis presides over the worst administration of FOI that this country has ever seen..
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...
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...

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...

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.

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...

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.

....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....
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)

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