Dissenting Report by Government Members

1.1Labor Senators strongly support Australians' right to obtain information through Freedom of Information (FOI) laws.

1.2An effective FOI regime, or a statutory right of access to government documents, is essential to Australia's democracy.

1.3Freedom of information laws encourage transparency and accountability by giving Australians and the media access to information about the elected government.

1.4The terms of reference provided the opportunity to develop practical recommendations to improve this system.

1.5Instead, recommendations of the majority report fail to reflect the Liberal Party's longstanding attempts to weaken freedom of information in Australia, including through the elimination of the FOI Commissioner.

1.6Despite the Greens Party previously supporting the three Commissioner model of the Office of the Australian Commissioner (OAIC), it now also seeks to dismantle this model.

1.7This inquiry has been a squandered opportunity.

1.8Labor Senators cannot support the majority report.

Commitment to an Effective OAIC

1.9Labor Senators are committed to an effective FOI system and a strong OAIC.

1.10Australia was the first nation with a Westminster-style democracy to introduce FOI legislation in 1982 following the reforming vision of Gough Whitlam.

1.11In 2009 and 2010, the Rudd Labor government, introduced significant FOI changes where a key feature of these improved laws was the establishment of the OAIC. This office was created to provide independent oversight of the FOI regime and to champion freedom of information across government.

1.12The 2010 legislation included a statutory requirement that there be a review of the 2010 reforms two years after implementation.

1.13As the majority report indicates, in 2013, Mr Allan Hawke AC conducted a review (Hawke Review) into the Freedom of Information Act 1982 (FOI Act), the Australian Information Commissioner Act 2010 (AIC Act), and the extent to which those Acts continued to prove effective in granting access to government information. The Hawke Review made 40 recommendations for improving the FOI system, including that a comprehensive review of the FOI Act be undertaken.

1.14Regrettably, the former Liberal government never responded to the HawkeReview and it certainly did not request a more comprehensive review of the FOIAct be undertaken.

1.15Instead, it announced the abolition of the OAIC in the 2014–15 Budget, and with a great deal of similarity to recommendations in this majority report, indicated a preference for the Commonwealth Ombudsman to handle FOI complaints. This legislation was never passed by the Parliament. The relevant Budget measure provided:

From 1 January 2015 the OAIC's status as an agency under the Financial Management and Accountability Act 1997 will cease and funding for ongoing functions will be transferred to other agencies. The new arrangements for privacy and FOI regulation are forecast to produce a saving of $10.2 million over four years.

From 1 January 2015 an Office of the Privacy Commissioner will be established as an independent statutory position within the Australian Human Rights Commission. It will be responsible for the exercise of statutory privacy functions.

External merits review of FOI decisions, which are currently conducted by the OAIC, will transfer to the Administrative Appeals Tribunal (AAT). A total of $1.8 million will be transferred to the AAT over four years to assist with the processing of FOI reviews.

Other Information Commissioner functions related to FOI guidelines and FOI statistics will be administered by the Attorney-General's Department. Complaints about FOI administration will be directly dealt with by the Commonwealth Ombudsman.[1]

1.16In relation to the former Liberal government's proposal to abolish the position of the FOI Commissioner in 2014, Professor John McMillan AO stated:

The then FOI Commissioner, James Popple, moved to the Administrative Appeals Tribunal. The Privacy Commissioner remained. I stayed on in the position as Information Commissioner even though it was formal government policy to abolish the position. I essentially stayed on for reasons of principle; that I think it's undesirable that executive action is taken to undermine the operation of an office that's been created by statute. I accept that if the parliament abolishes an office that's the right of parliament. But as a matter of principle I did not accept that it was appropriate for the executive, by all the means and the levers that are known to be available, to undermine a statutory creation.[2]

1.17As is evident from the majority report's recommendations, the Liberal Party's position on abolishing the FOI Commissioner role and relocating complaints about FOI administration to the Commonwealth Ombudsman now repeats itself.

1.18Given the Greens Party's historical opposition to this position, it is disappointing that Greens Senators now appear to support this position.

1.19Unlike the Coalition, which sought to abolish the OAIC and refused to appoint standalone commissioners, the government supports the FOI system.

1.20The government has delivered on its election commitment to fully restore the OAIC with the appointment of a standalone Freedom of Information Commissioner.

1.21As the Attorney-General, the Hon Mark Dreyfus KC MP has indicated, 'for the first time since 2015 the OAIC will have a standalone FOI Commissioner, Privacy Commissioner and Information Commissioner, as Parliament originally enacted'.[3]

1.22The Australian Information Commissioner, Ms Angelene Falk, subsequently welcomed the appointments of a standalone Privacy Commissioner and a new FOI Commissioner, noting:

This is a significant and welcome step for the Office of the Australian Information Commissioner and the Australian community as we move to a three-commissioner model at a time when access to information and the protection of privacy has never been more important.

The new commissioners will bring considerable expertise to promote and uphold privacy and information access rights. These are both areas that impact all Australians in our daily life across the economy and our democracy. It is exciting to consider how the background and experience of the new commissioners will contribute to our purpose and meet the regulatory challenges of the future.

I look forward to working with the new commissioners in serving the Australian community.[4]

Strategic Assessment of the OAIC

1.23Prior to the commencement of the committee's inquiry, the government had already provided funding for a Strategic Assessment of the OAIC as part of the Federal Budget 2023–2024.

1.24This is in stark contrast to the former Liberal government that tried to abolish the OAIC and defunded it for several years creating the situation we have today of backlogs in the FOI system.

1.25The Strategic Assessment of the OAIC will ensure the OAIC is well positioned to deliver on its statutory functions as the national information access and privacy regulator into the future.

Sustainability of the OAIC

1.26The government's establishment of a Strategic Assessment of the OAIC is in addition to its commitment to examine sustainable resourcing for the OAIC as part of its response to the Attorney-General's Department's Privacy Act Review Report 2022. Importantly, the government response provides:

To ensure the OAIC is resourced sustainably, the Government agrees in‑principle that further work should be done to investigate the feasibility of an industry funding model for the OAIC (proposal 25.7) and further consideration be given to establishing a contingency litigation fund for costs orders against the OAIC, and an enforcement special account to fund high cost litigation (proposal 25.8). These reforms will be complemented by a strategic assessment of the OAIC, which will include consideration of its resourcing requirements.[5]

1.27Proposal 25.7 of the Privacy Act Review Report 2022 was that 'further work should be done to investigate the effectiveness of an industry funding model for the OAIC'. The Report states that:

Further extensive consultation and analysis would need to occur before it would be possible to determine whether an industry funding model would be suitable for the OAIC. Although this could take some time, there would be benefit in undertaking this work. These investigations would include working with the Department of Finance and Treasury and involve:

preparing a service catalogue of all of the OAIC's activities and determining whether there is a basis for cost recovery of any of these activities

determining whether certain industries are more problematic and costly to regulate

determining which type of fees/levies may be appropriate or whether a combination of cost recovery levies, cost recovery fees and statutory levies would be feasible, and

undertaking further consultation with stakeholders on an industry funding model, before deciding on any proposed model.[6]

Options for Reform

1.28Labor members acknowledge evidence to the committee regarding the delays in the FOI system and the need for reform.

1.29Mr Michael McKinnon, Member, Australia's Right to Know Coalition, stated:

I'd like to make the observation that Australia, as one of the oldest and most stable democracies in the world, can do much better on FOI. At the moment, as our submission points out, the system is broken and badly broken. Integral to those flaws is the up to five years in delays occurring with appeals and the fact that the system is basically measured against the ability of applicants to gain access. An open and transparent government is a good government. A secret government hides failures, hides mistakes and hides corruption. Recent royal commissions, as our submission points out, show the real cost to the Australian taxpayer from secrecy between bureaucrats and politicians.[7]

1.30Ms Mursal Rahimi, Policy and Casework Solicitor, Refugee Advice and Casework Service, also stated that:

…it's our experience that the current operation of the FOI scheme has been plagued by issues, including persistent and unreasonable delays, an overreliance on exemptions and a culture against the disclosure of information. The impact of this slow and constrained FOI scheme is sharply felt by our clients. Delays in particular can leave our clients to languish in a prolonged state of uncertainty about their legal situation. It limits the legal advice and assistance that can be provided to them. It risks exacerbating other issues related to their legal status, such as extended family separation and financial insecurity. These impacts are magnified in circumstances where clients have a critical legal deadline and an urgent need to access their information.[8]

1.31As the Attorney-General's Department's submission to the inquiry indicates, since the significant FOI reforms in 2009–2010 there have been several independent reviews of the FOI framework.

1.32Labor members consider that the findings of these reviews, including the Hawke Review, should be carefully considered to identify appropriate options for reform.

1.33This should occur in addition to consideration of culture and resourcing matters that are already occurring as part of the Strategic Assessment of the OAIC and implementation of the government response to the Privacy Act Review.

1.34Consideration should be given to an independent and comprehensive review following the Hawke Review's recommendation. Support for an independent review was provided by witnesses such as Ms Yvette Lamont, Chief Executive Officer and Executive Director, Australian Press Council, who stated:

I do, however, wish to draw the committee's attention to our recommendation that the existing FOI regime should be subject to a comprehensive independent review. We do not believe the current arrangements, which have been in place for some years, are meeting the needs of the news media sector. Our submission also lays out what we believe should be important elements in the terms of reference to an independent review.[9]

Conclusion

1.35As set out above, Labor Senators cannot support the recommendations in the majority report. The majority report does not fully engage with the various issues raised during the course of this inquiry.

1.36The majority report does not properly acknowledge the impact of the former Liberal government's decision to defund the OAIC on the backlog of FOI matters. It does not properly contend with their failure to carefully examine the many recommendations put forward over the years by previous reviews for improvements to the FOI system.

1.37Regrettably, the majority report is just another attempt by the Liberal Party to abolish the Office of the Australian Information Commissioner.

1.38Labor Senators recommend that the government carefully considers the findings of the Strategic Assessment of the Office of the Australian Information Commissioner (OAIC) and that further consideration is given to appropriate funding models for the OAIC as part of implementation of the government's response to the Privacy Act Review.

1.39Labor Senators recommend that the government carefully considers the issues raised during the course of this inquiry and recommendations from previous reviews to identify appropriate options for reform to ensure the effective operation of the FOI system.

1.40Labor Senators also recommend that the government gives consideration to a comprehensive and independent review of the FOI Act.

Footnotes

[1]Parliamentary Library, Bills Digest:Freedom of Information Amendment (New Arrangements) Bill 2014, 27 October 2014 p. 5.

[2]Professor John McMillan AO, private capacity, Committee Hansard, 29 August 2023, p. 25.

[3]The Hon Mark Dreyfus KC MP, 'Freedom of Information Commissioner and Privacy Commissioner appointments', Media release, 27 November 2023.

[4]Office of the Australian Information Commissioner, 'OAIC says appointment of new commissioners a significant step', Media release, 27 November 2023.

[5]Commonwealth of Australia, Government Response: Privacy Act Review Report, 2023, p. 20.

[6]Commonwealth of Australia, Privacy Act Review Report, 2022, p. 266.

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

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

[9]Ms Yvette Lamont, Chief Executive Officer and Executive Director, Australian Press Council, Committee Hansard, 28 August 2023, p. 2.