Chapter 3Challenges to the functioning of the FOI system

3.1This chapter outlines general views on the effectiveness of the freedom of information (FOI) regime and discusses challenges in the operation of the FOI system, including:

delays in finalising FOI applications and reviews, and issues related to the introduction of statutory timeframes for FOI reviews;

cultural and leadership concerns;

FOI applications related to personal information; and

changes in the volume and nature of FOI applications.

General views

3.2As detailed in Chapter 2, submitters were invariably supportive of a wellfunctioning FOI system. However, virtually all submitters and witnesses argued that Australia's FOI system is not functioning effectively. The former FOI Commissioner, Mr Leo Hardiman PSM KC, stated, '[i]t is a matter of fact that the IC [Information Commissioner] review experiment has not been a success to date'.[1] The Grata Fund similarly submitted that a range of problems facing Australia's FOI System have contributed to 'decay in democratic accountability in Australia'.[2]

3.3Ms Lauren Gray submitted:

Access to government information is essential for informed public discourse, effective policy analysis, and the participation of citizens in shaping government decisions. When people are denied access to crucial information, their ability to contribute meaningfully to public debates and hold the government accountable is severely curtailed.[3]

3.4Australia's Right to Know coalition (ARTK) submitted that the current FOI system is 'not fit-for-purpose', arguing that its operation is leading to perverse outcomes that encourage government agencies to ignore processing times, have the effect of nurturing secrecy, discourages the use of the FOI system, and undermines the public's right to know.[4] ARTK also cautioned that '[a] secret government hides failures, hides mistakes and hides corruption'.[5]

3.5Country Press Australia (CPA) warned that substantial delays in processing FOI requests are impacting the news value of media stories, and pointed to inconsistencies in exemptions and unwarranted redactions of key information contained in documents released under FOI.[6] Crikey, similarly described 'obstructionist tactics' and 'administrative torture' faced by journalists pursuing FOI requests.[7]

3.6The Public Interest Journalism Initiative (PIJI) and Centre for Advancing Journalism (CAJ) at the University of Melbourne emphasised the value of investigative journalism in ensuring the community was well informed and able to hold to account those in power, but submitted that '[t]he quality and robustness of reporting is compromised when journalists [face FOI delays]'.[8]

3.7The Public Interest Advocacy Centre (PIAC) described how timely access to government-held information could be 'immensely empowering' for vulnerable people, and enabled its clients to receive better and more informed legal advice.[9] However, PIAC described how 'FOI fatigue' had become common in the community legal centre sector, as repeated experiences of delay with the FOI system has led to demoralisation and cynicism amongst practitioners:[10]

Increasingly advocates and legal practitioners, including PIAC, are reluctant to rely on the FOI process to obtain information, due to the significant delays and likelihood of extensive redactions being applied to any material received.[11]

3.8Much of the evidence singled out the FOI reviews and the performance of the Office of the Australian Information Commissioner (OAIC). NSW Council for Civil Liberties (NSWCCL), for example, told the committee that 'there is dysfunction within the OAIC as it is presently constituted'.[12]

3.9The Australian Financial Security Authority (AFSA) suggested to the committee that the FOI regime may be too favourable to those seeking information:

…we question whether the regime has, in some instances, moved too far towards the rights of the applicant when the regime can be and, in our experience is, weaponised by those who seek to cause harm and detriment to government agencies and officials.[13]

Timeliness of FOI applications and appeals

3.10In announcing his resignation as FOI Commissioner 5 March 2023, MrHardiman expressed his concern at prolonged delays in the processing of FOI requests and appeals (see Chapter 1). He stated:

The Commonwealth FOI system is a small but important adjunct to the doctrine of responsible government inherent in our Westminster system of government. It provides one check on the integrity and apolitical nature of the Australian Public Service. Essential to the proper functioning of the FOI system in that context is the provision of timely access to information in accordance with legally robust access decisions, including Information Commissioner (IC) review decisions.[14]

3.11Most submitters shared similar concerns with delays in the processing of both FOI applications and appeals. For example, the Australia Institute described Australia's FOI system as 'slow and byzantine'.[15] PIAC highlighted 'sustained delays at all levels in the handling of FOI requests and reviews', describing these delays as 'the single biggest issue facing the FOI system today'.[16] Such delays are 'incongruous with the objects of the FOI act', submitted Mr Peter Timmins.[17]

3.12The next section discusses delays in both FOI applications and reviews, and provides the views of submitters in relation to the viability of statutory timeframes.

Delays in FOI requests

3.13NSWCCL submitted that 'the existing FOI regime has been plagued by unreasonable delays', arguing that these delays have often extended for years, rendering the information being sought 'irrelevant' or 'obsolete'.[18] MrRexPatrick submitted that '[d]elay is the enemy of FOI. It serves as a cancer on the objects of the FOI Act'. He noted that where there were unreasonable delays in processing FOI requests, the information provided may no longer be of use.[19]

3.14The Grata Fund submitted that FOI applications were increasingly being finalised more than 90 days over the statutory timeframe, as detailed in Table3.1, below.

Source: Grata Fund, Submission 5, p. 8.

3.15The Grata Fund argued that a key reason for the delays was a lack of consequences within the FOI Act for breaches of statutory timeframes.[20]

3.16Submitters noted the impact of FOI delays on academia. Dr Amanda-JaneGeorge and Professor Julie-Anne Tarr submitted that such delays undermine the capacity of researchers to monitor and evaluate government policies, which in turn diminishes the sector's ability to propose new and better policies.[21] DrGeorge told the committee that a more timely and effective FOI system would 'make for better publications, better policy observations and potentially better policies at the end of the day'.[22]

3.17The Refugee Advice and Casework Service (RACS) also emphasised that the timely processing of FOI requests was vital to support advisory services and legal advice to refugees and people seeking asylum. PIAC similarly observed that FOI delays may mean that information is no longer relevant when released years later, and may constrain the ability of advocacy and legal services to properly advise clients.[23]

3.18RACS told the committee that, under a more effective FOI regime, visa applicants would receive full documentation before making visa applications, meaning the applications would be stronger, and 'the whole ecosystem would be changed'.[24] RACS also submitted that delays were of particular concern in relation to FOI applications for personal information (see below), claiming that refugees and people seeking asylum may otherwise face visa uncertainty that could lead to separation from family members, financial stress, extended unemployment, poverty, and mental health complications.[25]

3.19RACS highlighted concerns regarding the timeliness of FOI requests made to the Department of Home Affairs (Home Affairs), noting that data released by the OAIC showed Home Affairs had processed fewer FOI requests within the statutory timeframe in 2021–22 (41 per cent) than it did in 2020–21 (61 per cent) or in 2019–20 (69 per cent).[26] RACS told the committee that the performance of Home Affairs with respect to FOI processing had 'definitely degraded' and was worsening.[27] However, evidence from Home Affairs, outlined below, suggests the department has undertaken a number of cultural and process reforms in the last financial year that have significantly improved its handling of FOI applications.

3.20Delays in FOI application processing timeframes are well recognised by the legal profession, according to the Law Council of Australia (Law Council), which claimed that some departments are routinely in breach of the FOI Act by failing to notify applicants of processing extension requests.[28] The LawCouncil argued:

The Departments are breaching their statutory obligations without penalty. To the extent that this is occurring, at the very fundamental level the lack of communication regarding the timeframe to respond to a request compromises public confidence in administrative processes that fail to comply with its statutory obligations. This discourages individuals from engaging with the FOI system.[29]

3.21The OAIC noted that across Commonwealth departments in 2021–22, 70percent of all FOI requests were decided within the statutory timeframe. This represented a 'significant reduction' from previous years, during which 77percent of all requests were decided within the statutory timeframe in 2020–21; 79 per cent during 2019–20; and 83 per cent during 2018–19.[30]

3.22Some agencies decided significantly fewer FOI applications within the statutory timeframe, including Sport Integrity Australia (17 per cent), the NorthernAustralia Infrastructure Facility (18 per cent), and the Treasurer (25per cent).[31]

3.23The OAIC acknowledged the impact of these increasing delays:

This decline in timeliness negatively impacts the rights of members of the public to access information, including individuals seeking their own personal information.[32]

3.24The OAIC attributed the decline in meeting statutory timeframes across the Australian Public Service (APS) to:

high staff turnover;

recruitment difficulties (especially of FOI staff);

the onboarding and training of new FOI staff;

the increased complexity and volume of applications; and

a backlog of Information Commissioner reviews (IC reviews) since the establishment of the OAIC.[33]

3.25The OAIC also noted that deemed access refusals resulting from agencies failing to meet their statutory timeframes had led to increased applications for ICreviews being made to the OAIC. For example, of the 1641 IC review requests received by the OAIC in 2022–23, 697 (42 per cent) involved applications originally made to Home Affairs. Of the FOI reviews originating with HomeAffairs, 592 (or 85per cent) were the result of deemed access refusals due to the non-adherence by Home Affairs to statutory timeframes (see below for more on deemed refusals).[34] However, as noted above, the Department of Home Affairs has taken action to address this issue (see Chapter 2).

Delays in IC reviews

3.26Table 3.2 below shows the number of IC reviews received and finalised each year since 2010–11 and the average time taken to finalise IC reviews.

Source: Information Commissioner Review Statistics, tabled by the Office of the Australian Information Commissioner at a public hearing on 29 August 2023, [p. 1].

3.27The combination of an increase in the volume of FOI reviews and the related increase in the length of time taken to finalise FOI reviews has resulted in a significant backlog for the OAIC. Former Senator and strong FOI advocate MrPatrick noted that a major cause of delay in the FOI regime is the time it takes for appeals to be resolved through the OAIC.[35] The evidence clearly supported Mr Rex Patrick's point and is perhaps the best indicator the FOI system is not working as intended.The evidence is disturbing. As at 22 May 2023, the OAIC had 2060 active cases, some of which had been lodged as far back as 2018 (see Table 3.3, below).

Source: Australian Information Commissioner and Privacy Commissioner, Budget Estimates Hansard, 23May2023, p. 120.

3.28Annual reports of the OAIC prior to 2021–22 did not clearly report the number of ICreviews on hand for each period.[36] Hence, whilst there was an increase in the percentage of IC reviews finalised within the 12 months the subject of the annual report, the extent of the increasing backlog and the unacceptable time that a material number of active IC reviews have been outstanding was not readily apparent.[37] This should not be a matter which needs to be extracted through the Estimates process.

3.29Evidence before the committee pointed to a range of impacts from these extensive delays in finalising FOI reviews. For example, Ms Gray submitted:

The backlog of appeals awaiting review creates significant frustration and harms for individuals and the community seeking access to government information. It places an undue burden on those who are awaiting the resolution of their cases, often impacting their ability to make informed decisions or engage in important public discussions. The prolonged waiting times erode the principle of timely access to information, which is essential for a functioning democracy.[38]

3.30Delays may also result in frequent decisions to vary the outcome of a review, even if the initial decision was valid. The Australian Broadcasting Corporation (ABC) noted that a public interest assessment is applied at a specific point in time. When significant time has passed, the public interest assessment may change, potentially resulting in previously valid decisions being varied on appeal.[39]

3.31ARTK cautioned that the above data may in fact obscure the extent of the problem, telling the committee that the settlement rate of IC reviews would include matters in which the applicant 'gets tired of waiting' and withdrawals their application, thereby being recorded as a finalised IC review.[40] The finalisation of deemed refusals may also obscure the extent of delays in ICreview finalisations, as discussed below. Mr Bill Browne from TheAustraliaInstitute similarly stated that the overall picture was likely worse than the data suggests as many FOI requests are never submitted because 'people know that they won't get something out of them'.[41] These observations are particularly sobering.

Deemed refusals

3.32As outlined in Chapter 2, if an agency or minister fails to make a decision within the statutory timeframe, the decision is deemed to have been refused under section 15AC of the FOI Act (a 'deemed refusal'). The application is then automatically referred to the OAIC for review. Home Affairs submitted that the effect of this automatic referral to the OAIC of decisions not taken within the statutory timeframe may be an increased workload and further delays to FOI applications:

The Department seeks to process the majority of access requests in chronological order, unless compelling or compassionate circumstances exist. When 54V and 54Z Notices [notices relating to the information gathering powers of the OAIC] are issued by the OAIC in relation to 15AC deemed refused requests, the Department is required to reallocate resources away from operational teams processing in-time or on-hand 15AC deemed refused requests to process IC reviews. In practice, this means the Department may be required to prioritise 35 day-old IC review requests over on-hand 100 day-old requests. This delays other FOI applicants' access to documents, encourages applicants to seek IC review as a means of expediting their request, and results in flow-on adverse impacts on the Department's service delivery and statutory compliance—which drives further IC review requests and increases the age of the backlog.[42]

3.33Nearly nine out of 10 (89 per cent) of IC review requests in which Home Affairs was the decision-making agency related to section 15AC deemed refusals.[43]

3.34If information that is subject to a deemed refusal under review by the OAIC is subsequently released by the decision-making agency, the IC review would be recorded as having been finalised. Mr Hardiman described this as the 'throughput narrative', in which the volume of IC reviews being finalised was apt 'to create an impression that finalisation outcomes were better than they in fact were'.[44] In reality, he asserted, these reviews 'didn't involve a substantive ICreview process'.[45] Mr Hardiman further stated:

The throughput narrative was thus constructed in a way which distracted from engagement with the real issue of concern: that only a very small number of what I would term 'substantive' IC review applications were in fact being actively managed and that the backlog of those applications had grown, and continued to grow, beyond control.[46]

3.35It is noted that throughout this committee process many of the claims made by Mr Hardiman were heavily contested by Ms Falk whose responses were then (in many cases) equally contested by Mr Hardiman. In this case, the Information Commissioner, Ms Angelene Falk, disputed Mr Hardiman's characterisation of OAIC reporting, claiming IC review statistics had always included 'the full range of finalisation mechanisms', including decisions regarding deemed decisions.[47]

3.36In 2022–21, the OAIC received 1647 applications for review and finalised 1519 applications, of which 854 (52 per cent) were deemed refusals.[48]

3.37PIAC argued that due in part to the deemed refusal provisions of the FOI Act and extensive delays with IC reviews, agencies face few incentives to meet statutory timeframes. PIAC also cautioned that the threat of a decision being 'deemed' could mean that applicants face pressure to grant extension requests by decision-making agencies.[49]

3.38To address this issue, some submitters and witnesses recommended that, if an agency or minister fails to make a decision within the statutory timeframe, the application be deemed to have been accepted ('deemed acceptance', 'deemed disclosure', or 'deemed release').

3.39For example, Mr Geoffrey Watson from the Centre for Public Integrity proposed that the committee consider reforms that would require that decisions not made within the statutory timeframe be deemed to have been accepted—a proposal that he credited to Ms Courtney Law from the Grata Fund.[50] Under this proposal, a deemed grant of access would be stayed for seven days to permit a party to seek a court order preventing the information's release. Such an approach, Mr Watson argued, would not shift the onus of the FOI Act and would actually be consistent with the objectives of the Act.[51] Ms Law similarly stated that the rationale behind the reverse presumption was to 'reflect the aims and objectives that are so loftily outlined in the FOI Act', and would likely reduce the OAIC's caseload by removing deemed refusal decisions.[52]

3.40The Australian Conservation Foundation similarly submitted that a deemed disclosure system would provide a necessary incentive for decision-making agencies to adhere to statutory timeframes, but argued for such decisions to be subject to appeal.[53] Dr George encouraged the committee to consider third parties which could be impacted by a decision if a presumptive release model were to be implemented.[54]

3.41On this matter, Mr Patrick argued that there would be little increased risk if the FOI regime were to operate on the basis of a presumptive release except where the Commonwealth successfully demonstrates that the documents in question are exempt. Under such conditions, Mr Patrick proposed that the Information Commissioner would make a decision, after which the decision-making agency would be required to either appeal the decision or hand over the documents.[55]

IC review notifications

3.42Whilst there is a statutory requirement that IC reviews are conducted in 'as timely a manner as is possible',[56] there is no requirement under the FOI Act for the OAIC to notify an agency of an appeal request within a specific timeframe after an IC review commences.[57]

3.43The OAIC submitted that it aims to notify decision-making agencies within four to six weeks of an appeal being lodged, but recognised that many IC review notifications fall outside these timelines. The OAIC stated that several steps occur prior to an IC review notification, including checking the application's validity, ensuring the application was made within time, and conducting preliminary inquiries to determine whether or not to undertake a review.[58]

3.44The ABC outlined to the committee its concerns with delays in notifying decision-making agencies of IC reviews, which it said could take between two and 14 months after the applicant applied for review.[59] The ABC submitted that it had received one notice of review 14 months after the appeal was lodged with the OAIC, and another with a nine‑month delay.[60]

3.45The ABC noted that these notification delays could impact agencies that are first-level decision-makers by requiring that FOI staff invest time to refresh their understanding of a previously unsuccessful application. Or, in the case of staff turnover, new staff would need to familiarise themselves with an old FOI application under review.[61]

3.46Home Affairs told the committee that notifications of IC reviews can come 'in bulk'[62], but that there was 'no standard timeframe' during which such notifications occur.[63] Home Affairs noted that, if it were to receive notifications of IC reviews within a standard timeframe, it would 'support timely resolution of the review'.[64] This makes sense.

3.47In response to this evidence, the OAIC told the committee that it has 'implemented measures to address the timeliness of triage, notification and assessment of the commencement of IC reviews'.[65]

Measures to reduce the backlog of IC reviews

3.48Ms Falk told the committee that the FOI branch within the OAIC has 'a culture of continuous improvement and has regularly reviewed its processes and procedures over recent years to improve efficiency and outputs'. She outlined the following measures that had been adopted by the OAIC to address the backlog of FOI reviews:

external process reviews to maximise efficiency and process improvements;

refinements to systems and processes;

advocating with departments for greater proactive disclosure and administrative access;

providing guidance to agencies; and

internal reallocation of some functions and the provision of additional resources.[66]

3.49Mr Hardiman outlined for the committee a range of reforms within the OAIC over which he had presided to improve the quality and timeliness of decision-making. He also discussed his role in the development of technical FOI guidance, in streamlining work processes, and in restructuring the FOI team.[67]

3.50Additionally, Mr Hardiman told the committee that he had been encouraged by the Information Commissioner to streamline the FOI review process by, for example, relying on staff members to draft decisions.[68] Ms Falk refuted this claim, insisting that she had merely explored with Mr Hardiman 'whether a more streamlined approach to the drafting of statements of reasons could be adopted to reduce repetition, provide greater clarity and reduce the time for drafting'.[69]

3.51Mr Hardiman also told the committee that the Information Commissioner suggested that more use should be made of the FOI Commissioner's power to not undertake or not continue reviews in relation to the backlog of FOI reviews. Ms Falk also refuted this assertion, claiming that she had only indicated to MrHardiman that the early application of these discretionary powers was necessary to enable applicants to go to the Administrative Appeals Tribunal (AAT) for further review, where appropriate.[70]

3.52Mr Hardiman appears to have understood the Information Commissioner to have instructed him not to involve himself in the structure and workflows of the FOI team.[71] Ms Falk again disagreed with Mr Hardiman's characterisation of their discussions, claiming; 'I did not say anything to that effect'.[72] Ms Falk told the committee that there had been 'a collegiate exchange of information around these matters'[73] and outlined a range of reforms that Mr Hardiman was said to have helped design and implement within the FOI team (see above).[74]

The imposition of statutory timeframes for IC reviews

3.53Given the delays detailed above, much of the evidence received by the committee pointed to the need for the imposition of a statutory timeframe for finalising FOI reviews. Professor Tarr, for example, told the committee that, given the evidence around FOI review delays, she saw 'little choice but to go down the prescribed time frame route'. Professor Tarr also argued that, in light of the outcome of Patrick v Australian Information Commissioner (see Chapter 2), in which the court found that delays in the handling of FOI reviews by the OAIC were 'not legally unreasonable' given its lack of resources, statutory timeframes may necessitate additional resources to be allocated:

…until a mechanism for triggering appropriate funding requirements is made on a consistent basis to support the FOI Act, the well-documented cycle of historical non-staffing backlogs and funding cuts will inevitably continue.[75]

3.54The Australian Conservation Foundation (ACF) similarly argued that the imposition of statutory timeframes for IC reviews would ensure that additional resources were allocated to the OAIC's FOI functions.[76] ACF also recommended that statutory timeframes be imposed on the AAT when deciding FOI reviews.[77]

3.55Ms Gray argued that the absence of a statutory timeframe had been a 'longstanding concern' that has added to uncertainty and frustrations among users of the FOI system. Ms Gray submitted that the introduction of a reasonable statutory timeframe would provide much-needed certainty to applicants and would assist the FOI Commissioner to prioritise and manage the backlog of appeals.[78]

3.56The Grata Fund recommended that timeframes be legislated for each stage of the review process, proposing that:

the OAIC notify decision-making agencies within seven days of receiving an IC review application;

within 14 days of receiving an IC review notification, a decision-making agency provides all relevant documents concerning the application to the OAIC, and may request an extension of up to a further 14 days;

a decision is made by the OAIC within 60 days from receiving all relevant documents from the decision-making agency; and

when an IC review determines to release a document in whole or in part, a decision-making agency must release the information within 28 days.[79]

3.57Mr Michael McKinnon from ARTK strongly supported defined time limits for the appeal process, highlighting the importance of timely access to information to support democratic processes.[80] ARTK submitted that decision-making agencies should be required to file a statement of facts within 21 days of the FOICommissioner receiving an application for review, with review decisions required to be made within 56 days of lodgement.[81] Mr McKinnon also noted the use of defined appeal times in overseas jurisdictions (see Chapter 2).[82]

3.58Ms Megan Carter recommended that consideration be given to differing deadlines for IC reviews ranging from 30 days to 90 days to reflect the scale, nature, and complexity of types of reviews.[83] Ms Carter also contended that statutory deadlines were only likely to positively impact FOI application timeframes if accompanied by adequate resources.[84]

3.59PIJI and CAJ similarly argued that a statutory time limit, in isolation from other reforms, was unlikely to lead to more efficient outcomes in terms of FOI application and review processing times.[85] The Law Council submitted that a statutory timeframe would not be effective without 'commensurate and appropriate funding' to enable OAIC compliance:

…it is inconceivable that a statutory timeframe, on its own, would meaningfully address the existing delays at the IC review stage unless there is a corresponding increase in resourcing which can directly decrease the processing times for FOI matters.[86]

3.60See Chapter 4 for a further discussion on the adequacy of resourcing of the FOI regime.

3.61Mr Hardiman noted that the introduction of a statutory timeframe for the OAIC would be 'appropriate', recommending the timeframe be set at six months but subject to extensions and exemptions based on complexity.[87] He cautioned that, 'transitional issues' would need to be considered that recognised that the backlog of IC reviews could not be made compliant.[88] Mr Hardiman further recommended that the committee consider mechanisms to prevent 'gaming' of the timeframe and steps to ensure the review burden was not simply passed on to the next level of review (currently the AAT).[89]

3.62One submitter observed that, due to the varying complexity and volume of FOI requests, it was unlikely that a standard statutory timeframe could be imposed without impacting the quality of reviews. They recommended, however, that a statutory timeframe be imposed for the OAIC to notify decision-making agencies of IC reviews.[90]

3.63The ABC supported the introduction of a requirement that the OAIC notify an agency of a request for an IC review within 30 days of receipt to provide certainty around next steps.[91] The ABC also called for the OAIC to provide detailed reporting on the timeline for IC reviews and for a more structured timeline for OAIC reviews.[92]

3.64The issue of IC review notifications was raised also by Professor John McMillanAO, who outlined that early notification for agencies that an IC review had been lodged would be a procedural option to streamline FOI practice.[93]

3.65In response to this evidence, the OAIC submitted:

If legislative timeframes are introduced, this may require reconsideration of the review functions currently exercised by the Information Commissioner and require additional funding to implement. We submit that this proposal requires consideration of the nature of the review process and the procedural requirements in the FOI Act for specific exemption claims relating to national security, Cabinet or Parliamentary Budget Office documents, and whether an express timeframe may impact the ability of the decision-maker to make the appropriate decision in the circumstances.[94]

3.66The OAIC also told the committee that the imposition of statutory timeframes would also require 'consideration of the consequences' if an agency fails to meet the timeframe.

This proposal also requires consideration of the consequences of not meeting time frames, and resourcing impacts on the AAT if a failure to meet a statutory timeframe attracted an entitlement to seek AAT review.[95]

3.67The OAIC proposed that an alternative approach to introducing statutory timeframes for IC reviews would be to require agencies to publish time standards and to report on performance against those standards. The OAIC noted that it 'intends to proactively publish more information about timeframes on its website'.[96]

Cultural and leadership concerns

3.68A number of witnesses suggested that cultural issues across the APS are a significant contributor to the issues undermining the proper functioning of the FOI regime. Addressing cultural issues within the APS related to FOI was seen by some witnesses to be essential to improving its functioning. The Law Council, for example, told the committee that, [i]f you get the culture right, the costs will drop'.[97]

3.69This section considers the cultural issues that may be affecting both decision‑making agencies as well as the OAIC.

Culture within decision-making agencies

3.70ARTK told the committee that, perversely, the higher the level of political importance of a document that is subjected to an FOI request, the harder it is to get a response from the decision-making agency.[98] Crikey similarly submitted that delays in processing FOI requests were often political.[99]

3.71The Grata Fund submitted that decision-making agencies and ministers rely excessively and inappropriately on exemptions to either refuse access or heavily redact documents.[100] Pointing to the high rate at which initial access refusal decisions made at the agency-level are set aside or varied following an ICreview, the Grata Fund submitted that such consistent misapplication of the FOIAct indicates an overarching cultural problem with way in which agencies approach their duties under the FOI Act.[101]

3.72Mr Browne from the Australia Institute told the committee that there is an absence of consequences for failures to finalise FOI applications in accordance with the FOI Act. As such, Mr Browne stated, 'FOI officers or those who influence FOI officers know that they can get away with delaying responses, with giving inadequate responses and never being called up and challenged on it'.[102]

3.73Ms Annica Schoo from the ACF pointed to the previous government's treatment of the AAT's decision on National Cabinet documents (in which it was determined that National Cabinet was not a Cabinet for the purposes of the FOI Act, and therefore documents produced by the National Cabinet were not exempt under the FOI Act)[103] was 'brazenly ignored'.[104] She argued that this treatment was reflective of deeper cultural issues underlying the administration of the FOI regime.[105]

3.74Mr Hardiman similarly told the committee that, in his view, there were deficiencies in the leadership and culture of the APS as they relate to administration of the FOI Act.[106] Mr Hardiman identified some such concerns as:

a predisposition among departments to refuse access to requested documents;

a tendency by departments to claim multiple exemptions to 'shore up access refusal decisions';

decisions to exempt information from release without consideration of whether the information needed to remain confidential;

a failure to properly engage with applicants to resolve requests; and

the tendency to introduce new issues and exemptions as IC review applications progressed.[107]

3.75To address these perceived deficiencies, Mr Hardiman highlighted the need for a group of 'very senior public servants' to champion FOI and to promote a more 'pro-information access culture' across the APS.[108]

3.76Mr Hardiman also noted that too few people see FOI as a viable long-term career pathway within the APS, noting that there is no clear career stream for FOI staff.[109]

3.77In order to foster a more responsive FOI culture, the ABC described to the committee a number of steps it had taken in recent years that had enabled it to improve its timeframe compliance rates from 56 per cent two in 2021 to 93percent, today. These measures consisted of a 'multifaceted approach', including increasing staffing of the FOI function, conducting an internal education campaign on FOI, introducing mandatory FOI training, and establishing FOI 'champions' and contact people across the organisation.[110]

3.78As detailed above, several submitters singled out Home Affairs for exhibiting a particularly poor culture with respect to its handling of FOI applications. Under the FOI Act, the Information Commissioner may investigate agencies in the performance of their functions or the exercise of their powers (see Chapter2).[111] Two such reviews were conducted by the Information Commissioner in relation to Home Affairs: one formal review in 2020 and a second follow-up.[112]

3.79Home Affairs told the committee that these reviews, as well as consultations with other sources, gave the department 'some very useful ideas'.[113] The department claimed that, following the reviews, it had 'transformed' its approach to FOI applications over the last year, resulting in the backlog of FOI cases dropping significantly. By processing much of its FOI caseload under the Privacy Act 1988 (Privacy Act, see below) rather than the FOI Act, Home Affairs was able to decrease its backlog by 73 per cent and reduce average processing times to 11 days.[114] In parallel, Home Affairs increased its resourcing of the FOI section, implemented tools to streamline applications and case management, and established a senior-level working group on FOI matters.[115] Home Affairs reported that feedback to the changes had been 'overwhelming positive' from clients.[116]

3.80RACS acknowledged that there had recently been a positive 'culture shift' within the department. RACS told the committee; '[w]e very much welcome that we have that open dialogue with the Department of Home Affairs now more regularly and more robustly than perhaps we did in previous years', noting that the department's resourcing of its FOI functions remains a concern.[117]

Culture within the OAIC

3.81Mr Hardiman raised with the committee a number of concerns related to the functioning of the OAIC, including what he described as a 'cultural bent away from the FOI functions', which he attributed to the leadership of the office by the Information Commissioner.[118] Mr Hardiman also stated:

…it was clear to me, and to many others in the OAIC, that the FOI functions of the OAIC were in a day to day sense treated as secondary functions, of lesser importance than the Privacy functions.[119]

3.82Again, Ms Falk strongly rejected this assertion, claiming it was 'not reflective of the culture or attitude of the OAIC and its staff'.[120]

3.83Mr Hardiman also told the committee that the Information Commissioner had told him that it was not the role of the FOI Commissioner to be involved in organisational and management issues within the OAIC, even as they related to IC review processes.[121] Ms Falk again strongly disputed this characterisation of their discussion, telling the Senate Legal and Constitutional Affairs Legislation Committee that Mr Hardiman was involved in the restructure of the FOI branch in November 2022 and that she was not aware of further reforms that Mr Hardiman proposed be implemented.[122]

3.84Mr Hardiman told the committee that several staff members within the FOIbranch displayed 'symptoms of unhealthy work stress and traumatisation'.[123] MsFalk acknowledged that Mr Hardiman had raised 'a workplace relationship matter' with her and that they had subsequently discussed the matter on 'perhaps two' other occasions. However, Ms Falk stated that her understanding was that Mr Hardiman did not wish to pursue the matter any further.[124] Again, there is a strong divergence in the perspectives of MrHardiman and Ms Falk.

Requests for personal information

3.85Several submitters and witnesses emphasised the importance of requests for personal information for their work and for their clients. However, TheAustralia Institute reported that personal requests are more likely to be finalised outside the statutory timeframe than non-personal FOI requests.[125]

3.86RACS told the committee that around 70 per cent of its legal assistance clients did not have substantive documents relating to their matter. RACS therefore relies on access to personal information through FOI requests to support its clients:

Without a comprehensive understanding of a client's legal situation and immigration history, we're necessarily limited in our ability to provide full, accurate and effective assistance. Clients are also, in turn, limited in their ability to provide instructions or make informed decisions about the options available to them.[126]

3.87Several submitters discussed Home Affairs' recent emphasis on the Privacy Act to process applications for personal information. Home Affairs told the committee that the vast majority of FOI requests it receives relate to personal information (see also Chapter 2). As the Privacy Act does not require detailed reasoning, Home Affairs stated that it was able to significantly reduce processing times by releasing personal information under the Privacy Act rather than the FOI Act. Applicants who are not satisfied with a decision under the Privacy Act may request the application be processed through the FOI Act and may refer the matter to the OAIC for review.[127]

3.88Home Affairs reported that for non-personal FOI requests, 78 per cent were finalised on time. This compares with 34 per cent of personal requests being processed on time under the FOI Act and 89 per cent finalised on time when processed under the Privacy Act.[128]

3.89Home Affairs noted that the varied assessment obligations and review rights for access to personal information across the Privacy and FOI Acts may disadvantage applicants, depending on their chosen method of access or the mechanism preferred by agencies.[129]

3.90RACS (which predominantly makes personal requests)[130] raised some concerns regarding releases made under the Privacy Act. RACS noted that, for such releases, reasons are not provided by decision-making agencies, which may undermine the ability of applicants to seek an internal review if applicants are not satisfied with the outcome.[131] RACS cautioned that for decisions made under the Privacy Act, it can be difficult to identify what documents have been released or not released when heavily redacted, and told the committee that it can be unclear what documents exist and which do not.[132] RACS nevertheless acknowledged that it had limited experience with such releases as releases under the Privacy Act are 'a fairly new process'.[133]

3.91Professor McMillan recommended that consideration be given to removing personal information requests from the FOI scheme in their initial stages and processing them instead through the Privacy Act.[134] He pointed to advantages with encouraging applicants to use the Privacy Act, which he suggested was 'much more informal and negotiable' than the FOI scheme.[135] He also noted that applicants who were not satisfied with a decision under the PrivacyAct could subsequently use the FOI scheme (recommending consideration of a 30 day delay before being permitted to do so).[136]

3.92The Attorney-General's Department submitted that stronger guidance on how to make and handle requests for personal information under the Privacy Act may result in fewer FOI requests, easing pressure on the system.[137]

3.93Mr Hardiman also told the committee:

In my view, there is a serious question whether the FOI Act is an appropriate first port of call for access to certain kinds of personal information. There may, for example be merit in considering whether access to certain kinds of personal information—such as that related to migration or social security matters—would be better dealt with, at least in the first instance, through discrete and bespoke access regimes administered by the responsible agency or through applicable litigation processes where the information is being sought for litigation purposes.[138]

3.94The OAIC submitted that the proportion of requests for personal information as a proportion of the total number of FOI requests had fallen over recent years (see Chapter 2) as a result of proactive disclosure schemes (see Chapter 4) and the availability of documents on online portals.[139]

Complexity and changing demands on the FOI system

3.95Some evidence before the committee pointed not just to an increase in the volume of FOI applications over recent years, as detailed in Chapter 2, but also an increase in the level of complexity of requests and reviews. The OAIC described its FOI caseload as 'increasing and highly complex' and as 'increasingly complex'.[140] Ms Falk stated that 'the kinds of investigations that we're now undertaking are more complex'.[141] The OAIC observed that the current context in which FOI applications are made is 'significantly different' from when the FOI Act was initially enacted in 1982, particularly with respect to the digitisation of government-held records: '[e]ach day, government produces vast amounts of information that informs decisions that impact individuals, communities and the public interest'.[142]

3.96One submitter also noted the increasing volume of information held by government agencies as a result of digitisation:

A result of this digital explosion in document creation has been an increase in the volume of documents that fall within the scope of each FOI request. The FOI Act has not kept up with the digital world. More records in more locations take longer to search for and process at every stage, including the review process.[143]

3.97The submitter also claimed that the increase in requests for non-personal information had 'given rise to an increase in the proportion of complex requests', which may take longer to consider.[144]

3.98In parallel, ARTK submitted that the growth in privacy-related matters before the OAIC (resulting, in part, from a number of high-profile information breaches), has become a significant focus for the OAIC, at the cost of its FOI responsibilities.[145]

3.99The Attorney-General's Department similarly acknowledged that 'the FOI Act was developed over 40 years ago, in a context vastly different from the current digital age'.[146]

3.100As an illustration of the potential complexities associated with FOI requests, Home Affairs told the committee that it has 469 different systems containing personal information that may be subject to an FOI application.[147]

Footnotes

[1]Statement made by Mr Leo Hardiman PSM KC at a public hearing on 29 August 2023, p. 17.

[2]Grata Fund, Submission 5, p. 2.

[3]Ms Lauren Gray, Submission 43, [p. 2].

[4]Australia's Right to Know, Submission 31, pp. 1 and 3.

[5]Mr Michael McKinnon, Member, Australia's Right to Know Coalition, Committee Hansard, 28August 2023, p. 1.

[6]Country Press Australia, Submission 13, pp. 2–3.

[7]Crikey, Submission 15, p. 2.

[8]Public Interest Journalism Initiative and Centre for Advancing Journalism, University of Melbourne, Submission 9, p. 2.

[9]Mr Jonathan Hall Spence, Principal Solicitor, Public Interest Advocacy Centre, Committee Hansard, 28 August 2023, p. 26.

[10]Public Interest Advocacy Centre, Submission 4, p. 6.

[11]Public Interest Advocacy Centre, answer to question taken on notice at a public hearing on 28August 2023 (received 15 September 2023), pp. 1–2.

[12]Mr Stephen Blanks, Executive Member, NSW Council for Civil Liberties, Committee Hansard, 28August 2023, p. 21.

[13]Ms Ellyse Herrald-Woods, National Manager, Government Business, Australian Financial Security Authority, Committee Hansard, 29 August 2023, p. 39.

[14]Social media post by Mr Leo Hardiman PSM KC on 5 March 2023 regarding his resignation of appointment as FOI Commissioner, see Leo Hardiman, 'Statement regarding resignation of my appointment as commonwealth freedom of information commissioner', LinkedIn, 6 March 2023..

[15]Mr William Browne, Director, Democracy & Accountability Program, The Australia Institute, Committee Hansard, 29 August 2023, p. 35.

[16]Public Interest Advocacy Centre, Submission 4, pp. 4 and 5.

[17]Mr Peter Timmins, Submission 25, p. 2.

[18]NSW Council for Civil Liberties, Submission 12, p. 4.

[19]Mr Rex Patrick, Submission 3, p. 2.

[20]Grata Fund, Submission 5, p. 8.

[21]Dr Amanda-Jane George and Professor Julie-Anne Tarr, Submission 17, pp. 1–2.

[22]Dr Amanda-Jane George, Committee Hansard, 28 August 2023, p. 48.

[23]Public Interest Advocacy Centre, Submission 4, pp. 5–6.

[24]Ms Sarah Dale, Principal Solicitor and Centre Director, Refugee Advice and Casework Service, Committee Hansard, 28 August 2023, p. 25.

[25]Refugee Advice and Casework Service, Submission 8, pp. 11 and 16. See also Ms Mursal Rahimi, Policy and Casework Solicitor, Refugee Advice and Casework Service, Committee Hansard, 28August 2023, pp. 17–18.

[26]Office of the Australian Information Commissioner, Annual Report: 2021–22, pp. 146–147.

[27]Ms Sarah Dale, Principal Solicitor and Centre Director, Refugee Advice and Casework Service, Committee Hansard, 28 August 2023, p. 19.

[28]Law Council of Australia, Submission 20, p. 13.

[29]Law Council of Australia, Submission 20, p. 13.

[30]Office of the Australian Information Commissioner, Annual Report: 2021–22, p. 146.

[31]Office of the Australian Information Commissioner, Annual Report: 2021–22, p. 146.

[32]Office of the Australian Information Commissioner, Annual Report: 2021–22, p. 146.

[33]Office of the Australian Information Commissioner, Annual Report: 2021–22, p. 146; and Office of the Australian Information Commissioner, Submission 33, p. 12.

[34]Office of the Australian Information Commissioner, Submission 33, p. 11.

[35]Mr Rex Patrick, Submission 3, p. 2.

[36]For the 2021-22 period the OAIC reported the number of IC reviews on hand increased from approximately 1316 in 2020–21 to around 1874 in 2021–22. For the 2022–23 period the OAIC reported that the number of IC reviews on hand increased from 1876 in 2021–22 to 2004 in 2022–23. See Office of the Australian Information Commissioner, Annual Report: 2021–22, p. 44; and Office of the Australian Information Commissioner, Annual Report: 2022–23, p. 34.

[37]See Office of the Australian Information Commissioner, Annual Report: 2020-21, pp. 13, 42, and 145–148; Office of the Australian Information Commissioner, Annual Report: 2019-20, pp. 15, 44, and 153-156; Office of the Australian Information Commissioner, Annual Report: 2018-19, pp. 14, 45, 77–78, and 187-190.

[38]Ms Lauren Gray, Submission 43, [p. 3].

[39]Australian Broadcasting Corporation, Submission 27, p. 2.

[40]Mr Michael McKinnon, Member, Australia's Right to Know Coalition, Committee Hansard, 28August 2023, p. 1.

[41]Mr William Browne, Director, Democracy & Accountability Program, The Australia Institute, Committee Hansard, 29 August 2023, p. 34.

[42]Department of Home Affairs, Submission 2, p. 5.

[43]Department of Home Affairs, Submission 2, p. 5.

[44]Statement made by Mr Leo Hardiman PSM KC at a public hearing on 29 August 2023, p. 6.

[45]Mr Leo Hardiman PSM KC, Committee Hansard, 29 August 2023, p. 10.

[46]Statement made by Mr Leo Hardiman PSM KC at a public hearing on 29 August 2023, p. 6.

[47]Office of the Australian Information Commissioner, answers to questions taken on notice at a public hearing on 29 August 2023 (received 11 October 2023), p. 45.

[48]Ms Angelene Falk, Information Commissioner, Committee Hansard, 29 August 2023, pp. 57 and 64.

[49]Public Interest Advocacy Centre, Submission 4, p. 14.

[50]Mr Geoffrey Watson, Director, Centre for Public Integrity, Committee Hansard, 28 August 2023, p.27.

[51]Mr Geoffrey Watson, Director, Centre for Public Integrity, Committee Hansard, 28 August 2023, p.31.

[52]Ms Courtney Law, Strategic Litigation Solicitor, Grata Fund, Committee Hansard, 28 August 2023, p.27.

[53]Australian Conservation Foundation, Submission 14, p. 5. See also Mr Adam Beeson, GeneralCounsel, Australian Conservation Foundation Inc., Committee Hansard, 29 August 2023, p.32.

[54]Dr Amanda-Jane George, Committee Hansard, 28 August 2023, p. 54.

[55]Mr Rex Patrick, Committee Hansard, 28 August 2023, p. 41.

[56]Freedom of Information Act 1982, para. 55(4)(c)

[57]Australian Broadcasting Corporation, Submission 27, p. 2.

[58]Office of the Australian Information Commissioner, Submission 33.1, p. 12.

[59]Ms Ingrid Silver, General Counsel, Australian Broadcasting Corporation, Committee Hansard, 28August 2023, p. 5; and Australian Broadcasting Corporation, answers to questions taken on notice at a public hearing on 28 August 2023 (received 15 September 2023), p. 1.

[60]Australian Broadcasting Corporation, Submission 27, p. 2.

[61]Australian Broadcasting Corporation, Submission 27, p. 2.

[62]Ms Emily Brooks, Director, Freedom of Information, Department of Home Affairs, Committee Hansard, 29 August 2023, p. 49.

[63]Department of Home Affairs, answers to question on notice taken at a public hearing on 29August2023 (received 15 September 2023), p. 1.

[64]Department of Home Affairs, answers to question on notice taken at a public hearing on 29August2023 (received 15 September 2023), p. 2.

[65]Office of the Australian Information Commissioner, Submission 33.1, p. 12.

[66]Office of the Australian Information Commissioner, answers to questions taken on notice at a public hearing on 29 August 2023, p. 47.

[67]Mr Leo Hardiman PSM KC, Committee Hansard, 29 August 2023, p. 2.

[68]Statement by made by Mr Leo Hardiman PSM KC at a public hearing on 29 August 2023, p. 13.

[69]Office of the Australian Information Commissioner, answers to questions taken on notice at a public hearing on 29 August 2023 (received 11 October 2023), p. 44.

[70]Office of the Australian Information Commissioner, answers to questions taken on notice at a public hearing on 29 August 2023 (received 11 October 2023), p. 44.

[71]Mr Leo Hardiman PSM KC, Committee Hansard, 29 August 2023, p. 5.

[72]Ms Angelene Falk, Australian Information Commissioner, Committee Hansard, 29 August 2023, p.60.

[73]Ms Angelene Falk, Australian Information Commissioner, Committee Hansard, 29 August 2023, p.60.

[74]See also Office of the Australian Information Commissioner, response to questions on notice at a public hearing on 29 August 2023 (received 10 October 2023), p. 44–45.

[75]Professor Julie-Anne Tarr, Committee Hansard, 28 August 2023, p. 47.

[76]Mr Adam Beeson, General Counsel, Australia Conservation Foundation Inc, Committee Hansard, 29August 2023, p. 32.

[77]Australia Conservation Foundation, Submission 14, [p. 7].

[78]Ms Lauren Gray, Submission 43, [p. 4].

[79]Grata Fund, Submission 5, pp. 3 and 16.

[80]Mr Michael McKinnon, Member, Australia's Right to Know Coalition, Committee Hansard, 28August 2023, p. 2.

[81]Australia's Right to Know, Submission 31, p. 8.

[82]Mr Michael McKinnon, Member, Australia's Right to Know Coalition, Committee Hansard, 28August 2023, p. 2.

[83]Ms Megan Carter, Submission 16, p. 3.

[84]Ms Megan Carter, Submission 16, p. 1.

[85]Public Interest Journalism Initiative and Centre for Advancing Journalism, University of Melbourne, Submission 9, p. 3.

[86]Law Council of Australia, Submission 20, p. 15.

[87]Statement made by Mr Leo Hardiman PSM KC at a public hearing on 29 August 2023, p. 16.

[88]Mr Leo Hardiman PSM KC, Committee Hansard, 29 August 2023, p. 3.

[89]Statement made by Mr Leo Hardiman PSM KC at a public hearing on 29 August 2023, p. 16.

[90]Name withheld, Submission 30, [p. 2].

[91]Australian Broadcasting Corporation, Submission 27, pp. 2–3.

[92]Australian Broadcasting Corporation, Submission 27, p. 43.

[93]Professor John McMillan AO, Committee Hansard, 29 August 2023, p. 24.

[94]Office of the Australian Information Commissioner, Submission 33.1, pp. 9–10.

[95]Office of the Australian Information Commissioner, Submission 33.1, p. 10.

[96]Office of the Australian Information Commissioner, Submission 33.1, p. 10.

[97]Mr Graeme Johnson, Administrative Law Committee, Law Council of Australia, Committee Hansard, 29 August 2023, p. 21.

[98]Mr Michael McKinnon, Member, Australia's Right to Know Coalition, Committee Hansard, 28August 2023, p. 9.

[99]Crikey, Submission 15, p. 3.

[100]Grata Fund, Submission 5, p. 18.

[101]Grata Fund, Submission 5, p. 19.

[102]Mr William Browne, Director, Democracy & Accountability Program, The Australia Institute, Committee Hansard, 29 August 2023, p. 34.

[103]Patrick and Secretary, Department of Prime Minister and Cabinet (Freedom of Information) [2021] AATA 2719 (5 August 2021) [11]; and Mr Rex Patrick, Submission 3, pp. 4–5.

[104]Ms Annica Schoo, Lead Investigator, Australian Conservation Foundation Inc, Committee Hansard, 29 August 2023, p. 36.

[105]Ms Annica Schoo, Lead Investigator, Australian Conservation Foundation Inc, Committee Hansard, 29 August 2023, p. 36.

[106]Statement made by Mr Leo Hardiman PSM KC at a public hearing on 29 August 2023, pp. 3 and 14.

[107]Statement made by Mr Leo Hardiman PSM KC at a public hearing on 29 August 2023, pp. 14–15.

[108]Statement made by Mr Leo Hardiman PSM KC at a public hearing on 29 August 2023, p. 15. See also Mr Leo Hardiman PSM KC, Committee Hansard, 29 August 2023, p. 3.

[109]Statement made by Mr Leo Hardiman PSM KC at a public hearing on 29 August 2023, p. 16.

[110]Ms Ingrid Silver, General Counsel, Australian Broadcasting Corporation, Committee Hansard, 28August 2023, p. 12,

[111]Freedom of Information Act 1982, SS 69(2).

[112]Mr Steve Biddle, Assistant Secretary, FOI and Records Management, Department of Home Affairs, Department of Home Affairs, Committee Hansard, 29 August 2023, p. 42.

[113]Mr Steve Biddle, Assistant Secretary, FOI and Records Management, Department of Home Affairs, Committee Hansard, 29 August 2023, p. 47.

[114]Ms Clare Sharp, Group Manager, Legal, Department of Home Affairs, Committee Hansard, 29August 2023, p. 42.

[115]Ms Clare Sharp, Group Manager, Legal, Department of Home Affairs, Committee Hansard, 29August 2023, p. 42; and Mr Steve Biddle, Assistant Secretary, FOI and Records Management, Department of Home Affairs, Committee Hansard, 29 August 2023, p. 42.

[116]Ms Clare Sharp, Group Manager, Legal, Department of Home Affairs, Committee Hansard, 29August 2023, p. 42.

[117]Ms Sarah Dale, Principal Solicitor and Centre Director, Refugee Advice and Casework Service, Committee Hansard, 28 August 2023, p. 23.

[118]Statement made by Mr Leo Hardiman PSM KC at a public hearing on 29 August 2023, p. 2.

[119]Statement made by Mr Leo Hardiman PSM KC at a public hearing on 29 August 2023, p. 13.

[120]Office of the Australian Information Commissioner's response to questions on notice, taken at a public hearing on 29 August 2023 (received 10 October 2023), p. 33.

[121]Statement made by Mr Leo Hardiman PSM KC at a public hearing on 29 August 2023, p. 8.

[122]Ms Angelene Falk, Australian Information Commissioner, Senate Legal and Constitutional Affairs Committee Hansard, 23 May 2023, pp. 121–122.

[123]Statement made by My Leo Hardiman PSM KC at a public hearing on 29 August 2023, p. 5.

[124]Ms Angelene Falk, Australian Information Commissioner, Committee Hansard, 29 August 2023, p.66.

[125]The Australia Institute, Submission 23, p. 6.

[126]Ms Mursal Rahimi, Policy and Casework Solicitor, Refugee and Advise and Casework Service, Committee Hansard, 28 August 2023, p. 16.

[127]Ms Clare Sharp, Group Manager, Legal, Department of Home Affairs, Committee Hansard, 29August 2023, p. 42.

[128]Ms Clare Sharp, Group Manager, Legal, Department of Home Affairs, Committee Hansard, 29August 2023, p. 45.

[129]Department of Home Affairs, Submission 1, p. 9.

[130]See Refugee Advice and Casework Service, answers to questions on notice taken at a public hearing on 28 August 2023 (received 15 September 2023), [p. 1].

[131]Ms Sarah Dale, Principal Solicitor and Centre Director, Refugee Advice and Casework Service, Committee Hansard, 28 August 2023, p. 24.

[132]Ms Mursal Rahimi, Policy and Casework Solicitor, Refugee and Advise and Casework Service, Committee Hansard, 28 August 2023, p. 20.

[133]Ms Sarah Dale, Principal Solicitor and Centre Director, Refugee Advice and Casework Service, Committee Hansard, 28 August 2023, p. 24.

[134]Professor John McMillan AO, Committee Hansard, 29 August 2023, p. 24

[135]Professor John McMillan AO, Committee Hansard, 29 August 2023, p. 26.

[136]Professor John McMillan AO, Committee Hansard, 29 August 2023, p. 24.

[137]Attorney-General's Department, Submission 21, p. 6. See also Mr Simon Newnham, DeputySecretary, Integrity and International Group, Attorney-General's Department, CommitteeHansard, 29 August 2023, p. 50.

[138]Statement made by Mr Leo Hardiman PSM KC at a public hearing on 29 August 2023, p. 15.

[139]Office of the Australian Information Commissioner, Submission 33, p. 13.

[140]Office of the Australian Information Commissioner, Submission 33, pp. 3 and 9.

[141]Ms Angelene Falk, Australian Information Commissioner, SenateLegal and Constitutional Affairs Legislation Committee Hansard, 13 February 2023, p. 136.

[142]Office of the Australian Information Commissioner, Submission 33, p. 9.

[143]Name withheld, Submission 30, [p. 2].

[144]Name withheld, Submission 30, [p. 2].

[145]Australia's Right to Know, Submission 31, p. 10.

[146]Attorney-General's Department, Submission 21, p. 3.

[147]Ms Clare Sharp, Group Manager, Legal, Department of Home Affairs, Committee Hansard, 29August 2023, p. 44.