Freedom of Information Amendment Bill 2025

Ms CHANEY (Curtin) (19:52): Freedom of information, or FOI, is a cornerstone of our democracy. It's how we hold government to account. But the FOI system has room for improvement.

There are arguments to reduce disclosure of information. It creates a lot of work for the Public Service. Anecdotally, it's full of vexatious and voluminous requests.

Public servants are increasingly reluctant to write things down for fear of having their documents FOI'd. This bill addresses these problems by reducing disclosure, expanding cabinet confidentiality, limiting anonymous requests, adding new grounds to reject applications and introducing application fees. But there are also reasons to increase disclosure.

Requests can take far too long to be answered. The proportion of FOI requests granted in full has dropped from 59 per cent in 2012 to just 25 per cent in 2024. There have been findings that the system is driving a culture of secrecy, a lack of ministerial engagement and inconsistent exemptions.

Journalists and legal advocates report administrative torture, with excessive redactions and delays that compromise public interest reporting. These really crucial problems, requiring greater transparency, are not addressed in this bill. That's why every major review that has touched on the FOI system has called for a comprehensive, independent review of the whole FOI Act.

That's what we need before we make any significant changes. As we watch democratic institutions crumble in the United States, now is the time to safeguard our institutions of transparency and accountability, not undermine them. I want to run through why the FOI system is important, the current problems with the system, why this bill is not the answer and the arguments for an independent review.

The FOI Act was introduced in 1982 with a clear purpose: to open up government, to shift the default from secrecy to transparency and to ensure that decisions made in the name of the public are visible to the public. It has generally worked. Over the years, FOI requests have revealed waste, mismanagement and corruption.

They have informed journalism, empowered whistleblowers and strengthened public debate. Perhaps the most powerful recent example is the robodebt scandal. It was FOI requests that helped uncover the internal advice ignored by ministers.

It was FOI that revealed the legal doubts raised by public servants. It was FOI that exposed the machinery of a program that caused immense harm to vulnerable Australians. Robodebt is one of the worst misuses of government power in decades and, without the FOI system, the details of robodebt may never have come to light.

This is the power of FOI. It ensures that the public can find out what the government is doing. It exposes corruption and waste.

It allows the public to participate in government decision-making and exercise some power as citizens. It's about ensuring that governments act in the public interest and are held to account when they don't. But the FOI system is broken, and this is widely acknowledged.

Given its purpose is transparency and accountability, some of the most worrying issues are about delays and secrecy. Twenty-five per cent of first-instance FOI requests take more than a month, and 10 per cent take more than three months. And, if you don't like that first-instance decision about what's disclosed, the time it takes to have such a decision appealed has blown out to more than 15 months.

In many instances, this could render the information out of date and irrelevant by the time it's obtained. The royal commission into the robodebt scandal found that an FOI system with greater transparency would have uncovered problems much earlier and allowed for quicker resolution. As for secrecy, as well as the halving of full disclosures over the last 12 years, refusals have nearly doubled, from 12 per cent to 23 per cent.

This has become significantly worse under this government. In 2022-23, for the first time on record, more FOI requests were refused than granted in full, defying the FOI Act's presumption in favour of disclosure. And, when appealed, nearly half the decisions not to disclose are overturned.

It's true that, as well as these flaws in the timeliness and fullness of disclosure, the FOI system causes efficiency headaches for the Public Service. No doubt there are vexatious and frivolous requests, although I have only heard anecdotal evidence of this. The 580 requests received by the eSafety team from a single entity must have been painful, but I have seen no data about what proportion of FOI requests are vexatious.

The minister has said that three-quarters of requests are from individuals seeking information about themselves, which presumably are less likely to be vexatious. Given that public interest journalists would make up a significant proportion of the remaining quarter, the vexatious proportion must be well under a quarter. The question is: what's an appropriate price to pay for transparency and accountability?

We have the equivalent of 500 full-time public servants filling FOI requests. Is that too many in a public service with 213,000 people in it? That's 0.2 per cent focused on public accountability.

I recognise that vexatious applicants may now be able to use AI to generate many and slightly varied requests. This is a problem that needs to be considered along with the many other ways AI will be used in both helpful and harmful ways. A second headache for the Public Service is the way the system might inhibit frank and fearless advice from the Public Service.

The Shergold review made this clear. Public servants are increasingly reluctant to write things down. They fear that their internal deliberations will be exposed, misinterpreted and politicised.

That fear undermines good governance. It weakens the quality of advice and it erodes trust within the Public Service. The Freedom of Information Amendment Bill 2025 proposes to deal with these problems by: introducing an application fee for FOI requests; expanding cabinet confidentiality so that a document doesn't have to be produced if it was created for the 'substantial' purpose of being presented to cabinet, which is looser than the previous 'dominant' purpose test; amending the public interest test to introduce factors that weigh against disclosure, including if it may prejudice the frank or timely discussion of matters or exchange of opinions; introducing a 40-hour processing cap on FOI requests; introducing a pathway to reject vexatious or frivolous requests; preventing applicants from being anonymous; and other amendments to clarify and streamline the FOI process.

The government argues that many of these amendments are in line with recommendations made by a series of reviews over the past 12 years. My overarching concern, shared by much of civil society, is that these changes do not in any way address the problem of decreasing disclosure. In fact, they make it worse.

There isn't even any evidence that these changes would solve the efficiency problems presented. The government claims that the changes are in line with recommendations from a series of reviews, but this is a half-truth. Some changes are aligned with recommendations; others are directly contradictory to recommendations.

Most recommendations from previous reviews are not actioned at all by these changes. Perhaps unsurprisingly, almost all of the cherrypicked changes reduce transparency rather than increasing disclosure. The consultation process has involved government departments, which understandably have an interest in reducing workload and reducing the risk of embarrassing disclosures.

Engagement with stakeholders who have an interest in greater transparency and accountability has been sorely lacking. After such a consultation process, it's no surprise that all the changes are in the direction of less transparency. There are significant concerns with many of the major changes of the bill, but I'll just pick out three.

My biggest concern is about expanding cabinet confidentiality. The government argues that this would allow public servants to feel freer to provide frank and fearless advice, but there doesn't seem to be any evidence that a substantial purpose test would provide any greater clarity to public servants than a dominant purpose test would. It's unclear whether this change will actually deal with the problem it tries to solve.

At the same time, it's likely to significantly restrict disclosure of documents. It directly contradicts the robodebt royal commission, which recommended removing the cabinet exemption altogether. Now, if this had been done, the robodebt scandal would have been uncovered much earlier and dealt with much more effectively.

Some experts say frank and fearless advice would be enhanced through better tenure for public servants, not through changes to FOI. My second concern is with preventing anonymous applicants. The government argues that this will limit vexatious requests, but, again, there's no evidence that bad faith actors would actually be deterred by having to fill out a box for their first name and last name.

The change may have no impact on bad faith actors while deterring whistleblowers and government contractors, as well as anyone else who wants to remain unknown, from filing FOI requests. If your relationship with government is important to your business or personal life, you may be unwilling to file a genuine FOI request in your name for fear that it may negatively impact your relationship with government.

I wonder how many whistleblowers the government spoke to before deciding that anonymity was unnecessary. The third concern is the introduction of application charges. The government argues that this would prevent bad faith actors from introducing large volumes of vexatious and frivolous requests.

It could, but it could also deter public interest journalism. The 2013 Hawke review explicitly recommended no application fees. Keep in mind that this is the same review that the government repeatedly refers to for other changes proposed in the bill, to show that the changes are in line with Hawke's recommendations.

Had the government engaged with some of the journalists who use the FOI process to hold government to account, it would have heard more about the impact of fees on public accountability. So what's the path forward? Well, there's only one thing that all the previous reviews agree on.

The 2013 Hawke review, the 2015 Shergold review, the 2019 Thodey review and the Senate and Legal Constitutional Affairs References Committee inquiry in 2023 all call for a comprehensive, independent review of the entire FOI Act. It's important to note that none of those listed reviews performed a comprehensive review of the FOI system, so this would not be duplicative.

Instead, every previous review that's at least partially looked at the FOI system has pointed out its complexity and importance and said that requires a comprehensive assessment. This also demonstrates the limitations of the inquiry by the Legal and Constitutional Affairs Legislation Committee. While, on paper, referring this bill to a committee may tick the box, there are two problems with this approach.

First, the committee is restricted to considering the bill rather than the FOI Act more broadly. So the committee inquiry may actually give the impression of an FOI review without considering the scope of issues identified by all previous reviews. And, second, the government is again using its huge majority to push things through the House without proper consideration.

The committee review will be too narrow but better than nothing. Why not wait until the committee delivers its report before passing this bill through the House? How can you expect us to believe that you're operating in good faith if this bill passes through the House before we get to see the results of the inquiry?

Putting the cart before the horse like this again makes a mockery of the role of parliament. In theory, all members of the parliament from all sides should be considering the available evidence, including the outcome of the inquiry, before deciding how they vote. I made a submission to this committee inquiry on behalf of my community, making the same points as I'm making now.

The committee will not consider my submission, along with all the others, until after the bill passes through the House. Instead of rushing this through the House and a Senate inquiry with an intentionally narrow mandate, we need a comprehensive, independent review of the FOI Act and this bill. That is why I am moving a second reading amendment, circulated in my name, for a comprehensive review.

The comprehensive, independent review should be linked to the fundamental purpose of the FOI system, based on the principle that we need to maximise transparency and efficiency for genuine and lawful FOI requests. Within this context, it should consider what changes could be made to improve the timeliness of FOI processing, including the OAIC appeals process, to limit exemptions to disclosure requirements, to build greater trust in government decision-making, to deal with vexatious and frivolous requests, to consider the potential of AI to improve FOI processing and also how it may increase the volume of vexatious and frivolous requests and to ensure that public servants feel safe to provide frank and fearless advice.

This review must be broader than the proposed changes in the bill, and it must be done by independent experts, not representatives of the government who are focused on reducing the workload and reputational risk of the government. It also needs to provide significant opportunities for public feedback. We should not be making changes to this system without seeking the views of the public and the media, who hold government to account.

This review would build sufficient evidence to determine which changes would be the most effective in deterring vexatious and frivolous requests and protecting the ability of public servants to provide frank and fearless advice, while maximising transparency and efficiency for genuine FOI requests. When briefing us on this bill, the Attorney-General asked us to consider the bill in good faith, and I have.

Now it's my turn to ask the Attorney-General to take my amendments in good faith. She knows how important the FOI system is to our system of democracy, so I urge her to refer this to a proper independent review that can look at both sides of the ledger—the arguments for and against greater secrecy—and fix our FOI system to rebuild trust in government. I move: That all words after "That" be omitted with a view to substituting the following words: "the House declines to give the bill a second reading, and calls for an independent review of the Freedom of Information Act 1982, with terms of reference to provide recommendations on how best to: (1) encourage greater proactive disclosure of information to the public, and thus reduce the need for formal freedom of information requests; (2) maximise accessibility, transparency and efficiency for genuine and lawful freedom of information requests, including through setting an appropriate fee structure; (3) improve the timeliness of dealing with freedom of information requests, including review processes; (4) ensure that exemptions to disclosure requirements do not go further than is required for good government; (5) create a robust system for the resourcing, training, auditing, and oversight of authorised officers responsible for freedom of information decisions; (6) manage vexatious and frivolous requests; (7) address the potential impact of artificial intelligence, both to improve freedom of information processing and to mitigate the impact of its use in generating vexatious and frivolous requests; and (8) provide structural support for public servants to provide frank, honest, timely and evidence-based advice".

The DEPUTY SPEAKER ( Dr Garland ): Is there someone to second the amendment? Ms Boele: I second the motion and reserve my right to speak.