Dissenting report by the Australian Greens
Freedom of Information laws provide the public with important and
necessary access to information held by governments and government departments.
The primary goal of any Freedom of Information regime should be to
prioritise accessibility and transparency.
Freedom of Information laws provide the public, media organisations and
journalists with a critical pathway to accessing information that otherwise
would not be able to be accessed.
Of the 32 submissions received by the committee, not a single one
supports the proposed changes outlined in the Bill, highlighting the importance
placed by the community on an accessible and transparent Freedom of Information
regime and widespread concern about this Bill.
One of the key arguments raised by the government in support of the
Bill has been the delays experienced in the processing of cases by the Office
of the Australian Information Commissioner (OAIC). The government has argued
that this highlights inadequacies in the organisation and thus it should be
However, a number of witnesses argued that the delays associated with
the OAIC processing cases were the result of underfunding from both Labor and
Coalition governments. Mr Peter Timmins argued the OAIC had been 'set up to
fail' by being under-resourced from its establishment.
Mr John Wood argued:
The reforms of 2010 promised much, but the failure to provide
necessary resources to the Office of the Australian Information Commissioner,
led to the failure of those reforms. In addition, departments and agencies read
into the failure to provide these resources, an "approval" to respond
less than diligently to requests in the knowledge that either complainants
would become exhausted pursuing their request, or it would be held up, in
review, within the OAIC for a long, long time.
The majority committee report notes that the committee did not receive
evidence indicating that AAT review would necessarily be faster than review by
the OAIC. On the contrary, FOI Commissioner Dr James Popple advised the
committee that comparison of the FOI reviews dealt with since 2010 revealed
that the AAT had taken almost exactly the same average time as the OAIC to
resolve FOI cases.
Mr Timmins in evidence to the inquiry stated:
I think the argument we are going to save $10 million over
four years has some large question marks about it, to put it mildly. Some of
the reasons I have raised in my submission include: the costs to individuals,
the cost to the AAT; the cost to agencies for mandatory internal reviews, which
has not been costed anywhere...
Other concerns raised included the high level of fees required to be
paid in order to apply for an external review of decisions through the AAT.
As noted in the Majority Committee report, the Public Interest Advocacy
Centre (PIAC) expressed concern that in addition to the burden of application
fees, most individual applicants would not have the kind of legal
representation that government agencies were able to retain, resulting in an 'imbalance
that will happen in the litigious process'.
Professor Julian Disney also emphasised other factors that may affect
accessibility to the AAT including the formality and intimidator impact of the
AAT process and environment.
The Guardian also noted other issues with the proposed AAT process,
The $800 AAT filing fee is just the start of the potential
costs to the requester in getting his or her application in front of the first
reviewer who is genuinely independent of the agency which may have an interest
in keeping the requested information secret and therefore in overstating the
exemptions. OAIC reviews could be conducted on the papers, whereas AAT reviews
will often involve hearings. The Committee will be aware that a tribunal must
give procedural fairness to an unrepresented applicant, and that such hearings
impose burdens on all parties and on the tribunal. Generally, they are not as
efficient as proceedings in which all parties are represented by experienced
Concerns were also raised around potential conflicts of interest
relating to the exercise of functions by the Attorney-General’s department.
As noted in the majority committee report, the Open Australia Foundation
referred to 'gaming of the system' undertaken by some agencies, underlining the
need for an independent monitor of FOI compliance, and further claimed that
among agencies, the Attorney-General's Department was 'not modelling best
practice in this area'.
Academic Bruce Baer Arnold went further, expressing scepticism 'that executives
within the Attorney- General's department will demonstrate a sustained and
vigorous enthusiasm for transparency'.
As noted in the majority committee report, PIAC noted that the new
arrangements would allow the Attorney to define categories of information that
were 'unreasonable' to publish, including information sought from his own
department: 'there is a conflict with changing an office which is independent
in issuing this kind of regulation and guidance about how the FOI Act should
operate to someone who is subject to the Act himself'.
The Privacy Commissioner, Mr Timothy Pilgrim, stated that 'the Bill
creates a model that is not suited to achieving the objectives of the [Privacy
Act] in the most efficient way'.
It is important to note that the Hawke Review did not recommend what is
currently being proposed by the Government and in fact commented positively on
the OAIC. It made a number of recommendations to improve the functions and
operations of Australia’s FOI regime – none of which are being pursued by this
The Hawke Review further called for a more comprehensive review of FOI
laws and systems, something that has been pre-empted by the current Bill.
It is clear from the overwhelming evidence presented to the committee
that the approach to FOI as proposed in the Bill would not improve
accessibility and transparency, and in fact would create substantial barriers
impacting the public’s right to know.
The Australian Greens recommend that the Bill not be passed.
The Australian Greens recommend that the government establish a
comprehensive review into Freedom of Information as recommended by the Hawke
Senator Lee Rhiannon
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