Freedom of Information Amendment Bill 2025

Ms SHARKIE (Mayo) (20:21): The fact that this important legislation, the Freedom of Information Amendment Bill 2025, is being debated and discussed in this chamber rather than the main chamber, I feel, is quite telling. It appears that the government is avoiding scrutiny on a bill which appears itself to be designed to avoid scrutiny of government. The Freedom of Information Act 1982 clearly requires updating.

There's no doubt about that. It was written before the advent of modern technologies that are now ubiquitous such as the internet and artificial intelligence. The government argues that their bill achieves this by banning anonymous FOI requests; establishing a contemporary FOI framework and improving government agencies' ability to discourage vexatious, abusive and frivolous requests; clarifying existing exemptions, including expanding the scope of the cabinet confidentiality exemption and the test for accessing deliberative documents; providing clear processes for outgoing ministers to ensure FOI requests are appropriately processed and responded to; and providing for application fees with exemptions for people seeking their own personal information.

Freedom of access to government information is enshrined in the International Covenant on Civil and Political Rights. The United Nations Human Rights Committee has stated: … States parties should proactively put in the public domain Government information of public interest. States parties should make every effort to ensure easy, prompt, effective and practical access to such information.

Accordingly, the objectives of the FOI Act include providing access for the Australian community to information held by the government by requiring agencies to publish information and provide for a right of access. It was intended to contribute to increased public participation in government process, better informed decision-making, increased scrutiny, discussion and comment on the review of government activities and an increased recognition that information held by the government is a national resource to be managed for public purposes.

The Law Council of Australia, in its 2023 review of the FOI Act, raised concerns that the act's aims are undermined by endemic delays, underresourcing and overreliance of exemptions. The Office of the Australian Information Commissioner's 2021-22 annual report showed that 30 per cent of all FOI requests determined that year were not processed within the applicable statutory timeframe.

Some agencies decided fewer than 50 per cent of FOI requests within the statutory timeframes, and 19 per cent of FOI requests were more than 90 days over the applicable statutory period. The Law Council recommended, among other things, that the OAIC should be properly resourced to finalise reviews in a timely manner and to help agencies build a culture of disclosure, and that agencies should be properly supported to carry out their obligations lawfully under the FOI Act.

Contrary to this recommendation, the bill appears to instead attempt to correct the public expectation of easy, prompt and effective access to information. In part, this aims to address the agency's apparent fear that frank advice could be released to the public and cause embarrassment to the government. Robodebt demonstrates the terrible outcomes that can occur when journalists and the public are unable to easily access information under FOI.

The ensuing robodebt royal commission observed that the blanket cabinet document exemption under the act was being overused and recommended that it be repealed, not broadened in scope as proposed under this bill. The government argues that ministers and senior public servants will not be encouraged to provide frank and fearless advice unless protected by expanded cabinet confidentiality.

This sounds like a cultural problem with disclosure and is inconsistent with the aims of the parliament when it originally enacted the FOI Act. The bill continues in this vein. The proposal to ban anonymous FOI requests is said to be needed to address vexatious, abusive and frivolous requests due to the impacts of whistleblowers, for whom we know Australia's protections are completely inadequate.

I propose that the government explore other means to achieve these objectives that would not have such a chilling effect on freedom of information in Australia. Alternatives could include requiring the use of technology such as CAPTCHA to ensure that applicants are human rather than AI—you know, the ones where you've got to click on all the bridges or click on all the cars.

Now, I say this, but I note that it was reported that departmental officials were unable to provide concrete examples of AI FOI applications when requested to do so in the other place. Another alternative would be using the Information Commissioner's existing powers to declare a litigant vexatious in extreme cases of abuse of process, including harassing or intimidating an individual or agency employee, such that if all steps have been taken they can prevent the person from exercising their rights under the FOI Act.

In my view, all FOI applications should remain free or at an absolutely nominal cost. I appreciate that the government has stated its intention for applicants seeking their own personal information, and that's around 72 per cent of overall requests. But if the charging of a fee is intended to discourage bulk AI applications, as I said, a dollar or two would likely have the same effect.

But again, the government could not provide evidence in the other place that this was occurring and has decided, instead, to go to incredibly high fees—really, the highest across the nation, from what we can see from the states. I don't think that that is the direction we should be going in. So while I support the need to modernise the FOI process to eliminate fake applications, if these are indeed occurring, we need to consider these amendments very carefully.

The goal must be to create more transparency from government, not less transparency. I'm disappointed that I'm not going to be able to support this bill. It does not meet the objectives for which this act was designed.

The government needs to go back to the drawing board and ensure that the FOI regime shines sunlight where it is needed and provides the transparency and accountability which enables our democracy to thrive.